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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD D. POMEROY,
Court of Appeals No. A-10588
Appellant, Trial Court No. 3AN-09-5478 CI
t/w 3AN-02-10469 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2306 - May 20, 2011
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Richard D. Pomeroy, pro se, Anchorage, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
In 2005, Richard D. Pomeroy pleaded no contest to third-degree assault.
He later filed a petition for post-conviction relief; this petition was dismissed by Superior
Court Judge Philip R. Volland in early 2007.
Pomeroy initially filed an appeal challenging the dismissal of his petition,
but he later voluntarily abandoned that appeal and, instead, filed a second petition for
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post-conviction relief. Judge Volland dismissed Pomeroy's second petition in September
2009, and the case now in front of us is Pomeroy's appeal of the dismissal of that second
petition.
Pomeroy contends that Superior Court Judge Philip R. Volland should not
have adjudicated his second petition because Pomeroy filed a timely peremptory
challenge of Judge Volland under Alaska Civil Rule 42(c)(1). Pomeroy also argues that
he received ineffective assistance of counsel during the litigation of his first petition for
post-conviction relief. Finally, Pomeroy raises numerous attacks on his underlying
criminal conviction, based on the events surrounding the litigation of that criminal case.
For the reasons explained here, we hold that Judge Volland properly
refused to honor Pomeroy's peremptory challenge. We further hold that Pomeroy is
estopped from asserting that he received ineffective assistance of counsel during the
litigation of his first petition for post-conviction relief because he knowingly waived his
right to counsel and chose to represent himself.
Finally, we hold that Pomeroy is not entitled to raise his remaining claims.
Many of these claims are based on errors that allegedly occurred during the litigation of
his underlying criminal case. These claims were forfeited because Pomeroy pleaded no
contest to the criminal charge. The remainder of Pomeroy's claims are based on errors
that allegedly occurred during the litigation of his first petition for post-conviction relief.
Those claims were forfeited because Pomeroy filed an appeal of the superior court's
dismissal of that first petition, but then Pomeroy voluntarily dismissed that appeal.
Pomeroy's peremptory challenge of Judge Volland
After Pomeroy's second petition for post-conviction relief was assigned to
Judge Volland, Pomeroy filed a challenge to Judge Volland under Alaska Civil Rule
42(c)(1). Civil Rule 42(c)(1) states: "In [any] action pending in the Superior or District
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Courts, each side is entitled as a matter of right to a change of one judge ... ." The rule
further specifies that a party's right to peremptorily challenge a judge is waived if the
party knowingly participates before that judge in "[a]ny judicial proceeding which
concerns the merits of the action and involves the consideration of evidence or of
affidavits."1
Judge Volland was the judge who decided Pomeroy's first petition for post-
conviction relief. When Pomeroy challenged Judge Volland in the second post-
conviction relief proceeding, Judge Volland denied the challenge on the basis of our
decision in Plyler v. State.2 In other words, Judge Volland ruled that Pomeroy was not
entitled to challenge him because he was the judge who presided over Pomeroy's prior
post-conviction relief litigation (litigation involving the same underlying criminal
conviction).
In Plyler, this court held that a defendant pursuing a petition for post-
conviction relief is not entitled to peremptorily challenge the judge who presided over
the defendant's underlying criminal case.3 Pomeroy notes that his case presents a
different situation: although Judge Volland was the judge who presided over Pomeroy's
first petition for post-conviction relief, Judge Volland was not the judge who presided
over Pomeroy's underlying criminal case. Thus, strictly speaking, our decision in Plyler
does not govern Pomeroy's situation.
The issue here is whether a second post-conviction relief application,
challenging the same underlying criminal conviction but filed as a separate civil case,
should be deemed a new "action" for purposes of Civil Rule 42(c)(1). Or, phrased more
1 Alaska R. Civ. P. 42(c)(4)(i).
2 10 P.3d 1173 (Alaska App. 2000).
3 Id. at 1176.
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case-specifically, the issue is whether Pomeroy waived his right to challenge Judge
Volland in the second post-conviction relief litigation when Pomeroy failed to challenge
Judge Volland in the first post-conviction relief litigation.
The Alaska Supreme Court and this court have consistently held that a
party's exercise of a peremptory challenge under Civil Rule 42, or a party's waiver of
the right of peremptory challenge under Civil Rule 42, apply not only to the proceeding
directly affected by the challenge or the waiver, but also to any other proceeding that is
"ancillary to and a continuation of the underlying ... action."4
5
For example, in Gieffels v. State, the defendant peremptorily disqualified
the judge assigned to his felony case.6 The case was assigned to another judge, and the
indictment was later dismissed because of insufficient evidence and prosecutorial error.
The State then secured a second indictment on an identical charge. The defendant's
arraignment on this new indictment was assigned to the original judge (the one who had
been peremptorily challenged). At this arraignment, the defendant noted his earlier
peremptory challenge and demanded that the arraignment be assigned to a different
judge. The judge refused to honor the defendant's earlier peremptory challenge and,
over objection, presided over the defendant's arraignment on the second indictment.7
The supreme court held that because the judge had been preempted in the prior
4 Staso v. State, Dep't. of Transp., 895 P.2d 988, 991 (Alaska 1995) (quoting Webber
v. Webber, 706 P.2d 329, 330 (Alaska App. 1985)).
5 552 P.2d 661 (Alaska 1976), disapproved of on other grounds by Miller v. State, 617
P.2d 516 (Alaska 1980).
6 Id. at 663-64.
7 Id.
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proceeding, he was "automatically disqualified from presiding" at the subsequent
proceeding "in which the same charges [were] at issue."8
In McKinnon v. State,9 the supreme court held that a probation revocation
proceeding and a criminal prosecution stemming from one allegation of criminal conduct
were part of the same action for the purpose of peremptory challenges.10 And in Webber
v. Webber,11 this court similarly held that a defendant in a criminal contempt proceeding
was not entitled to peremptorily challenge the trial court judge who presided over the
civil matter out of which the contempt charge arose because the contempt proceeding
was a continuation of the civil matter.12
The most significant support for Pomeroy's position is found in Staso v.
State, Department of Transportation.13 In Staso, the Alaska Supreme Court decided that
each side gets a new peremptory challenge under Civil Rule 42(c) when a civil suit is
dismissed on procedural grounds and then refiled, even when the second complaint is
identical to the complaint previously dismissed.14 The supreme court noted the
uncertainty that could be caused if a party's right to a new peremptory challenge hinged
on whether the new complaint alleged significantly different counts or theories.15
8 Id . at 665.
9 526 P.2d 18 (Alaska 1974).
10 Id. at 25.
11 706 P.2d 329.
12 Id. at 330.
13 895 P.2d 988.
14 Id. at 992.
15 Staso, 895 P.2d at 990 n.4.
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The Staso decision could be read to establish an invariable rule that parties
are entitled to a new peremptory challenge under Civil Rule 42(c) whenever a civil
action is refiled and is given a new court number. But we have not interpreted Staso in
such a broad fashion.
In Plyler, this court discussed the Staso decision, and we rejected the notion
that, under Staso, parties invariably are entitled to a new peremptory challenge every
time a related court filing is given a different file number:
We do not interpret Staso as creating a hard-and-fast
rule for all situations in which related proceedings are given
separate court numbers. Rather, we read Staso in a more
limited fashion: ... in the particular context of refiled civil
actions, the public policy favoring continuity in judicial
decision-making was outweighed by the policy of giving
litigants clear advance notice of their rights.16
We followed the reasoning of the earlier cases on this subject, and we
applied the principle that collateral proceedings are not considered to be "new" actions
for purposes of the peremptory challenge rule. Specifically, in Plyler, we held that the
parties to post-conviction relief proceedings are not entitled to peremptorily challenge
the judge who presided over the underlying criminal action.17
More recently, in State v. Galbraith,18 we adhered to this principle again.
Galbraith involved an indictment that was dismissed after the judge found the defendant
to be incompetent to stand trial.19 The State later refiled the same charges (with a new
case number) after the State concluded that the defendant had regained his competency.
16 Plyler, 10 P.3d at 1176.
17 Id.
18 199 P.3d 1216 (Alaska App. 2009).
19 Id. at 1217.
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When this new indictment was assigned to the judge who had presided over the initial
proceedings (and who had found the defendant to be incompetent), the State attempted
to exercise a peremptory challenge against this judge.20
We acknowledged that Staso might be read to support the State's position,
but we again adhered to the reasoning we employed in Plyler. We held that the renewed
proceedings on the indictment were so significantly related to the earlier proceedings that
the parties were not entitled to a new round of peremptory challenges. Thus, because the
State did not challenge the judge during the initial proceedings, the State was prohibited
from challenging the judge during the renewed proceedings on the same charges.21
We now hold that this same reasoning applies to Pomeroy's case. As we
recognized in Plyler, when a defendant attacks a criminal conviction by filing a petition
for post-conviction relief, the post-conviction relief proceeding - although a separate
civil action - is collateral to the original criminal case. We held in Plyler that the
original criminal case and the post-conviction relief case are to be treated as a single
action for purposes of the peremptory challenge rule. We now conclude that when a
defendant files a second petition for post-conviction relief, attacking the same underlying
criminal conviction, that second petition should also be considered to be the same action
as the original criminal case and the prior post-conviction relief litigation.
In Pomeroy's case, he allowed his first post-conviction relief application
to be litigated in front of Judge Volland. Pomeroy did not challenge Judge Volland, and
Judge Volland was the one who eventually entered the final judgment in that litigation.
Pomeroy thus waived his right to peremptorily challenge Judge Volland in this second
post-conviction litigation attacking the same underlying conviction.
20 Id. at 1217-18.
21 Id. at 1219.
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Pomeroy's claim that he received ineffective assistance of counsel
in his first post-conviction relief litigation
One of Pomeroy's claims in his second petition for post-conviction relief
is that he received ineffective assistance of counsel during the litigation of his first
petition for post-conviction relief. In order to explain why the superior court correctly
rejected this claim, we must recount the procedural history of Pomeroy's first petition
for post-conviction relief.
Pomeroy's first petition for post-conviction relief was dismissed by the
superior court in early 2007, and Pomeroy filed an appeal of this dismissal: Pomeroy v.
State, Court of Appeals File No. A-9965.
While Pomeroy's appeal was pending, this court became aware that
(1) Pomeroy had litigated that first petition for post-conviction relief without the
assistance of counsel, and (2) the superior court never asked Pomeroy whether he was
willing to waive his right to counsel.22 We therefore remanded Pomeroy's case to the
superior court, directing the superior court to offer Pomeroy the opportunity to ask for
counsel and, with the assistance of counsel, the opportunity to completely relitigate his
petition for post-conviction relief.23
In the superior court, Pomeroy initially asked for counsel, and Judge
Volland appointed the Office of Public Advocacy to represent him.24 But on June 25,
2007, Pomeroy filed a pro se pleading in this court in which he expressed his
dissatisfaction with his court-appointed attorney. In his motion to this court, Pomeroy
22 See Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (holding that the Alaska
Constitution guarantees the assistance of counsel to defendants pursuing their first petition
for post-conviction relief).
23 Corrected Order at 2, Pomeroy v. State, No. A-9415 (April 13, 2007).
24 Order at 1, Pomeroy v. State, No. A-9965 (July 11, 2007).
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stated that he did not wish to relitigate his post-conviction relief claims in the superior
court. Instead, Pomeroy asked this court to allow him to proceed directly to the appeal
of Judge Volland's dismissal of those claims. In addition, Pomeroy asked this court to
let him prosecute the appeal pro se.25
In response to Pomeroy's pleading, this court again remanded Pomeroy's
case to the superior court to make sure that Pomeroy was indeed willing to waive his
right to counsel.26
Pursuant to our second remand order, the superior court held a hearing to
ascertain Pomeroy's wishes. After the superior court expressly advised Pomeroy of the
benefits of counsel and the dangers of self-representation, Pomeroy reiterated that he
wished to waive his right to counsel, that he wished to forego any relitigation of his post-
conviction relief claims in the superior court, and that he wished to proceed directly to
his appeal of the superior court's judgment.27 (As we explain later in this opinion, this
appeal was later dismissed at Pomeroy's request.)
To summarize this procedural history: The superior court committed error
by allowing Pomeroy to litigate his petition for post-conviction relief pro se without first
obtaining Pomeroy's knowing waiver of his right to counsel. But when this error was
brought to light, Pomeroy was given two opportunities to assert his right to counsel and
to completely relitigate his post-conviction relief claims, this time with the assistance of
counsel. Pomeroy declined these opportunities and, instead, he chose to let the results
of the superior court litigation stand.
25 Id. at 2.
26 Id. at 4-5.
27 Report to Appellate Court at 1-2, Pomeroy v. State, No. A-9965 (Aug. 13, 2007).
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We acknowledge that when Pomeroy waived his right to counsel during the
remand proceedings in the superior court, he informed Judge Volland that his waiver was
prospective only:
Mr. Pomeroy : I would like to make a statement that I
did not - I want to make sure that [my waiver is] from this
date forward - for the [purposes of] appeal ... that I'm
waiving my rights to [the assistance of] counsel. I'm not
[saying] that I waive my rights during the ... process of the
[post-conviction relief] application. [In] other words, when
I filed the application, when I asked for an attorney it, was
denied, relitigated. [sic] Now we're moving forward, [but]
I'm not waiving my right to assistance of counsel during the
litigation of the [post-conviction relief] application; put it that
way. ... I want to make sure the Court understands this.
The Court: I understood that ... to be the case.
Mr. Pomeroy : Yeah, okay. ... I just want to make
sure that ... I'm not waiving - going back and waiving some
[deprivation of] right that [already] happened, you know.
Based on this colloquy between Pomeroy and Judge Volland, it appears that
Pomeroy may have wanted to preserve his right to argue on appeal - that is, in the
appeal of Judge Volland's decision to dismiss Pomeroy's first petition for post-
conviction relief - that he had been wrongfully deprived of the assistance of counsel
when he litigated that first petition.
But although Pomeroy may have wished to preserve this point on appeal,
he also (at the same hearing) voluntarily relinquished the opportunity to relitigate his first
post-conviction relief petition with the assistance of counsel. In other words, Pomeroy
knowingly declined the only relief that he would have been entitled to, had he prevailed
on this claim of error.
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Moreover, as we explain later in this opinion, Pomeroy subsequently chose
to voluntarily withdraw his appeal of the superior court's dismissal of his first petition
for post-conviction relief. In other words, even though Pomeroy may have preserved this
issue for appeal when he appeared in front of Judge Volland on August 3, 2007,
Pomeroy ultimately decided not to pursue this appellate claim (or any others); instead,
he voluntarily dismissed his appeal in early 2009.
By these actions, Pomeroy retrospectively ratified his pro se litigation of
his first petition for post-conviction relief. And because Pomeroy knowingly waived the
assistance of counsel to help him litigate that first post-conviction relief application, he
is now barred from arguing that his self-advocacy in that litigation was ineffective.
When a defendant knowingly waives his right to counsel and chooses to
represent himself, the defendant may not later obtain relief on the basis that his self-
representation was incompetent when judged against the standard of practice expected
of criminal defense attorneys.28
For these reasons, the superior court correctly rejected Pomeroy's claim that
he received ineffective assistance of counsel during the litigation of his first petition for
post-conviction relief.
Pomeroy's remaining claims
Many of Pomeroy's remaining claims involve errors that allegedly occurred
during the litigation of his underlying criminal case - i.e., errors that occurred before
28 See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8, 79 L. Ed.
2d 122 (1984) ("A defendant who exercises his right to appear pro se cannot thereafter
complain that the quality of his own defense amounted to a denial of 'effective assistance of
counsel.'") (quoting Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 2541 n.46,
45 L. Ed. 2d 562 (1975). Accord State v. Russell, 858 P.2d 674, 679-80 (Ariz. App. 1993);
State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990).
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he pleaded no contest. A defendant who pleads guilty or no contest waives all
non-jurisdictional errors that may have been committed in the lower court proceedings
before the entry of the defendant's plea.29 Thus, the superior court correctly rejected all
of these claims of error.
Pomeroy also raises many other claims that involve errors allegedly
committed during the litigation of his first petition for post-conviction relief. All of these
claims could have been raised in Pomeroy's appeal of the superior court's dismissal of
his first petition. However, Pomeroy voluntarily dismissed that appeal while it was in
the briefing stage. Here are the details of that procedural history:
After the superior court dismissed Pomeroy's first petition for post-
conviction relief, he filed a pro se appeal of the superior court's decision. As we have
already explained, we realized while Pomeroy's appeal was pending that he had never
validly waived his right to counsel during the first post-conviction relief litigation, so we
gave Pomeroy the opportunity to relitigate that first petition with the assistance of
counsel. Pomeroy ultimately decided to waive the assistance of counsel, to waive
relitigation of his post-conviction relief claims, and to simply proceed with his appeal.
But in early 2009, Pomeroy filed a motion asking this court to stay all
further proceedings in his appeal while he litigated a second petition for post-conviction
relief. In his motion, Pomeroy indicated that he intended to argue in his second petition
that he was denied his right to counsel during the litigation of his first petition.30
29 Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974); Tyler v. State, 24 P.3d 1260,
1262 (Alaska App. 2001); Bobby v. State, 950 P.2d 135, 139 (Alaska App. 1997); Miles v.
State, 825 P.2d 904, 905 (Alaska App. 1992).
30 Order at 1-2, Pomeroy v. State, No. A-9965 (Feb. 3, 2009).
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This court denied Pomeroy's motion to stay the appeal.31 (The denial of
Pomeroy's motion to stay the appeal did not prevent Pomeroy from filing his proposed
second petition for post-conviction relief; it simply meant that the two cases would be
litigated simultaneously.)
Six weeks later, on March 23, 2009, with his reply brief still pending,
Pomeroy filed a motion to withdraw his appeal. In this motion, Pomeroy informed this
court that he had, indeed, filed a second petition for post-conviction relief, and he
asserted that "it [was] in the best interest of justice, and [in the interest of his] family[,]
that appellant withdraw [this appeal]."32
In accordance with Pomeroy's request, this court dismissed his appeal.33
By withdrawing his appeal, Pomeroy relinquished his right to challenge
any errors that the superior court might have committed during the litigation leading up
to the dismissal of his first petition for post-conviction relief. As stated in Alaska
Criminal Rule 35.1(b), the remedy of post-conviction relief "is not a substitute for ... any
remedy incident to the proceedings in the trial court," nor is it a substitute for "direct
review of the sentence or conviction." In other words, a defendant can not use post-
conviction relief as a method for raising claims that could have been raised on direct
appeal.
This principle most often comes into play when a defendant attempts to
raise claims in post-conviction relief litigation that could have been raised in the
defendant's direct appeal of their criminal conviction. As stated in AS 12.72.020(a)(2),
31 Id. at 2.
32 Affidavit of Counsel [sic] at 1-2, Pomeroy v. State, No. A-9965 (March 23, 2009).
33 Order at 1, Pomeroy v. State, No. A-9965 (April 3, 2009).
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a claim can not be raised in post-conviction relief litigation "[if] the claim was, or could
have been ... , raised in a direct appeal [of] ... the conviction."
The same principle applies to Pomeroy's litigation. Pomeroy attempted to
use a second petition for post-conviction relief as a means of challenging errors that
allegedly occurred during the litigation of his first petition for post-conviction relief. But
the proper method for challenging those errors was to appeal the superior court's
judgment in the first post-conviction relief case.
Pomeroy filed an appeal, but then he voluntarily withdrew it. Pomeroy's
voluntary withdrawal of his appeal did not give him the right to use a second petition for
post-conviction relief as a substitute for his abandoned appeal. Moreover, AS 12.72.
020(a)(6) bars defendants from seeking post-conviction relief if they have filed a
previous petition for post-conviction relief.
For these reasons, the superior court correctly rejected all of these claims
when they were raised in Pomeroy's second petition for post-conviction relief.
(We have recognized one exception to the rule that all claims of error
arising during the litigation of a first petition for post-conviction relief must be raised on
direct appeal of the judgment entered in that post-conviction relief action. The exception
is that a defendant may file a second post-conviction relief petition to pursue a claim that
the defendant's attorney incompetently litigated the first petition for post-conviction
relief.34 This exception exists because, under Alaska law, a claim of ineffective
assistance of counsel ordinarily can not be raised on direct appeal.35 But, as we have
already explained, Pomeroy waived his right to relitigate his first petition for post
34 Grinols v. State, 10 P.3d 600 (Alaska App. 2000), aff'd, 74 P.3d 889 (Alaska 2003).
35 Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292,
1295-96 (Alaska App. 1984).
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conviction relief with the assistance of counsel; instead, he chose to ratify his pro se
litigation of that first petition for post-conviction relief. Under these circumstances,
Pomeroy is not allowed to argue that he represented himself ineffectively.)
Conclusion
The judgment of the superior court is AFFIRMED.
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