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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARLON MACK,
Court of Appeals No. A-12672
Appellant, Trial Court No. 3AN-09-04467 CI
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2738 - January 6, 2023
Appeal from the Superior Court, Third Judicial District,
Anchorage, Erin B. Marston, Judge.
Appearances: Shelley K. Chaffin, Law Office of Shelley K.
Chaffin, Anchorage, for the Appellant. Eric A. Ringsmuth,
Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for
the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
The Alaska Court of Appeals is an intermediate appellate court with
jurisdiction over criminal and post-conviction relief cases. Under Alaska law, if a party
receives an adverse final decision in this Court, the party may file a petition for hearing
in the Alaska Supreme Court. Although the supreme court has absolute discretion
----------------------- Page 2-----------------------
whether to grant or deny the petition for hearing - i.e., whether to hear the petitioned
case on the merits - a party nonetheless has the right to file the petition seeking review
of this Court's decision.
In this appeal from a successive post-conviction relief action, Marlon Mack
argues that he established a prima facie case of ineffective assistance of counsel based
on his previous appellate attorneys' alleged failure to inform him of his right to file a
petition for hearing in the Alaska Supreme Court - first, after he lost his direct appeal
in this Court, and then, after he lost his first post-conviction relief appeal in this Court.
Because we conclude that Mack's case requires further proceedings, including an
evidentiary hearing on at least one of his claims, we vacate the superior court's dismissal
of his most recent post-conviction relief application and remand for further proceedings
consistent with this opinion.
General factual overview and summary of our decision
In 2002, Mack was convicted by a jury of first-degree murder for strangling
and killing his girlfriend.1
Mack was represented by court-appointed counsel. Mack
2
Mack's
later challenged his conviction and sentence in this Court, and we affirmed.
appellate counsel did not file a petition for hearing in the Alaska Supreme Court.
After losing his appeal, Mack filed an application for post-conviction relief,
challenging the effectiveness of his trial attorney. The superior court rejected Mack's
1 AS 11.41.100(a)(1)(A).
2 Mack v. State , 2004 WL 1126281, at *8 (Alaska App. May 19, 2004)
(unpublished).
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----------------------- Page 3-----------------------
3
claim; he appealed to this Court, and we again affirmed. Mack's post-conviction relief
appellate counsel did not file a petition for hearing in the Alaska Supreme Court.
Mack subsequently filed a second application for post-conviction relief -
4
i.e., a "Grinols" application. In the Grinols application, Mack raised two primary
claims. First, Mack challenged the competence of his post-conviction appellate attorney
- i.e., the attorney who represented him before this Court in his first post-conviction
relief appeal. He argued that this appellate attorney had incompetently failed to file a
petition for hearing or at least inform him of that option after he lost his post-conviction
relief appeal in this Court. Second, Mack raised a "layered" post-conviction relief claim.
In this layered claim, Mack argued that his post-conviction relief attorney in the superior
court had incompetently failed to include, as one of the claims for post-conviction relief,
that Mack's attorney on direct appeal had a duty to file a petition for hearing or at least
inform Mack of that option.
Mack argued that the failure of his two appellate attorneys to inform him
about the possibility of filing a petition for hearing precluded him from further pursuing
his issues on appeal and later seeking habeas corpus relief in federal court (because he
5
had failed to exhaust his state remedies).
Mack argued that, to establish prejudice, he
3 See Mack v. State, 2009 WL 1099432, at *3 (Alaska App. Apr. 22, 2009)
(unpublished). Mack's post-conviction relief attorney did not file a notice of appeal of the
superior court's denial of his post-conviction relief application. The superior court
subsequently found that this attorney had provided ineffective assistance of counsel by failing
to file the notice of appeal, and authorized Mack to pursue an untimely appeal, about a year
after the denial of his post-conviction relief application.
4 See Grinols v. State, 74 P.3d 889, 896 (Alaska 2003) (authorizing a criminal
defendant to file a second post-conviction relief application challenging the effectiveness of
their attorney in their first post-conviction relief proceeding).
5 See 28 U.S.C. § 2254(b)(1).
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----------------------- Page 4-----------------------
was not required to show a reasonable possibility that the supreme court would have
ruled in his favor on either petition; he only needed to show a reasonable possibility that,
but for the deficient representation of his appellate attorneys, he would have filed a
6
petition for hearing. Mack alleged that he met this standard, and he therefore asked the
superior court to restore his right to file petitions for hearing in both of his prior appeals.
Upon the State's motion, the court dismissed Mack's application. The court
agreed with Mack that he was entitled to "meaningful consultation" from his appellate
attorneys regarding his right to file a petition for hearing in the supreme court. But the
court nonetheless concluded either that this obligation had been fulfilled or that Mack
could not show prejudice. Mack now appeals that dismissal.
We have previously addressed an attorney's duty to consult with a criminal
defendant or post-conviction relief applicant about their right to appeal a final judgment
to this Court. We have held that an attorney has a legal duty to engage in meaningful
consultation with a defendant regarding a direct appeal in one of two circumstances -
when the defendant indicates an interest in pursuing an appeal, or when the defendant's
attorney knows or reasonably should know that a rational person in the defendant's
7
situation might want to appeal.
In the context of a first post-conviction relief
proceeding, we have similarly held that counsel has "the obligation to ascertain whether
6 See Broeckel v. State, 900 P.2d 1205, 1208 (Alaska App. 1995) (holding that a
defendant need only show that their attorney incompetently failed to preserve their right to
appeal in order for that right to be automatically restored).
7 Harvey v. State, 285 P.3d 295, 297 (Alaska App. 2012). In Harvey, we declined
to decide whether a criminal defense attorney has a duty to consult with a convicted client
about the possibility of filing a direct appeal outside of these two contexts. Id.
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----------------------- Page 5-----------------------
the defendant wishes to appeal and, if so, the obligation to initiate appellate
proceedings."8
Mack's case requires us to examine whether this obligation should extend
to petitions for hearing - i.e., to requests for relief filed in the supreme court after a
9
defendant loses in this Court. More specifically, we must determine (1) the scope of an
attorney's legal duty to inform a defendant who loses an appeal in this Court about the
option of filing a petition for hearing in the supreme court, and (2) the circumstances
under which a defendant is entitled to reinstatement of their right to file a petition for
hearing if the attorney fails to fulfill this duty.
For the reasons explained in this opinion, we conclude that Mack was
entitled to meaningful consultation from each of his attorneys regarding the resolution
of his case in this Court and his right to file a petition for hearing challenging our
decision. We additionally conclude that, under the circumstances of this case, further
proceedings in the superior court are necessary.
An attorney's duty to advise a criminal defendant or post-conviction relief
applicant about the right to file an appeal
We begin by discussing the right of appeal in Alaska criminal cases, and
a defense attorney's duty to advise a criminal defendant regarding this right.
8 Wassilie v. State, 331 P.3d 1285, 1290 (Alaska App. 2014).
9 This Court also occasionally receives petitions for hearing in situations where a
person convicted of a misdemeanor filed their direct appeal of right in the superior court,
rather than directly in this Court. See AS 22.07.020(d)(1) (providing that the right to appeal
to the court of appeals is waived if an appellant chooses instead to appeal the final decision
of the district court to the superior court under AS 22.10.020(e)). The principles discussed
in this case apply equally to that situation.
- 5 - 2738
----------------------- Page 6-----------------------
In Alaska, a criminal defendant convicted after a trial has the right to appeal
their criminal conviction(s) directly to this Court. The defendant's appeal to this Court
from a final criminal judgment is a "matter of right."10 That is, the defendant has both
the right to file the appeal, and the corresponding right to a decision on the merits by this
11
Court.
Indigent criminal defendants are entitled to the assistance of court-
appointed counsel both in the trial court and on direct appeal.12
And all criminal
defendants are entitled to the effective assistance of counsel at both stages.13
The law is
10 AS 22.07.020(d).
11 See Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App. 1997) (discussing the
distinction between the right to appeal and the right to petition).
12 Right to counsel at trial: See Gideon v. Wainwright, 372 U.S. 335 (1963) (holding
that, under the Sixth Amendment, an indigent defendant has the right to court-appointed
counsel in all criminal prosecutions); Alexander v. State, 490 P.2d 910, 915-16 (Alaska 1971)
(recognizing that article I, section 11 of the Alaska Constitution - and by extension,
AS 18.85.100, the Public Defender Act - guarantees an indigent defendant in a criminal
prosecution the right to the assistance of counsel).
Right to counsel on direct appeal: See Halbert v. Michigan, 545 U.S. 605, 606
(2005) (holding that indigent defendants have the right to appointed counsel for all first-tier
criminal appeals, whether discretionary or "as of right"); Douglas v. California, 372 U.S. 353
(1963) (recognizing that a state affording a right of appeal to a criminal defendant must also
supply counsel for an indigent defendant in order to make that appeal more than a
"meaningless ritual").
See also AS 18.85.100(a) (providing that an indigent person under formal criminal
charge is entitled "to be represented, in connection with the crime or proceeding, by an
attorney to the same extent as a person retaining an attorney is entitled").
13 U.S. Const. amends. VI, XIV; Alaska Const. art. I, §§ 7, 11; Lafler v. Cooper , 566
U.S. 156, 165 (2012) (recognizing that criminal defendants are entitled to the effective
assistance of counsel in the criminal proceeding and on direct appeal); Risher v. State, 523
P.2d 421, 423 (Alaska 1974) ("The mere fact that counsel represents an accused does not
(continued...)
- 6 - 2738
----------------------- Page 7-----------------------
well-settled that, in the context of a direct appeal, effective assistance of counsel includes
14
the duty to file a notice of appeal if directed to do so by the defendant. This obligation
also exists under the Alaska Rules of Professional Conduct.15
The first major case in Alaska addressing an attorney's obligation to file a
16
In Broeckel, the
notice of appeal on behalf of a criminal defendant is Broeckel v. State.
defendant's court-appointed attorney failed to file a notice of appeal, even though it was
17
Relying on the rules of professional
clear that the defendant intended to appeal.
responsibility and the appellate rules, we held that defense counsel had acted
incompetently in functionally withdrawing from the case without doing anything to
18
preserve the defendant's right to appeal.
We further held that, in the context of an attorney's incompetent failure to
preserve a criminal defendant's right to appeal, a defendant did not need to establish that
they would have prevailed on the merits of any of the appellate issues as a prerequisite
13 (...continued)
assure th[e] constitutionally-guaranteed assistance. The assistance must be 'effective' to be
of any value.").
14 See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Harvey v. State, 285 P.3d
295, 297, 306 (Alaska App. 2012).
15 Alaska R. Prof. Conduct 1.2(a) ("In a criminal case, the lawyer shall abide by the
client's decision, after consultation with the lawyer, as to . . . whether to take an appeal.").
16 Broeckel v. State, 900 P.2d 1205 (Alaska App. 1995).
17 Id. at 1206.
18 Id. at 1207-08 (citing Alaska Appellate Rules 209 and 517, under which "[c]ounsel
appointed to represent a defendant in the trial court . . . shall remain as appointed counsel
throughout an appeal at public expense . . . and shall not be permitted to withdraw except
upon the grounds authorized," and former Disciplinary Rule 2-110(A)(2) of the Code of
Professional Responsibility, which then provided that "a lawyer shall not withdraw . . . until
he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client").
- 7 - 2738
----------------------- Page 8-----------------------
19
to having the appeal reinstated. We adopted this approach for several reasons. First,
we noted that "an attorney who incompetently fails to file a notice of appeal deprives the
client of the right to an appeal, not just the right to a successful appeal."20
Second, we
observed that requiring a showing of prejudice before permitting an appeal to proceed
would necessarily entail almost the same analysis that would be required in simply
deciding the appeal on its merits. Finally, we pointed out that requiring a particularized
showing of prejudice "would be of questionable value, since it would impose on the trial
21
court the essentially circular task of reviewing the propriety of its own legal decisions."
We also noted that the federal courts were nearly unanimous in concluding that a
showing of traditional prejudice - i.e., that the appeal would have been successful -
22
was not required under these circumstances.
Five years later, in Roe v. Flores-Ortega, the United States Supreme Court
addressed this same issue in a case where the criminal defendant had not given a clear
23
At the outset, the Supreme Court identified the two ends of
directive to file an appeal.
the spectrum defining defense counsel's obligation to file an appeal: At one end, a
defense attorney "acts in a manner that is professionally unreasonable" if the attorney
24
fails to file an appeal after being expressly instructed by the defendant to do so. At the
19 Id. at 1208.
20 Id.
21 Id.
22 Id. (collecting cases).
23 Roe v. Flores-Ortega, 528 U.S. 470 (2000).
24 Id. at 477.
- 8 - 2738
----------------------- Page 9-----------------------
other end, an attorney does not act incompetently when the attorney fails to file a notice
of appeal after being explicitly told not to do so by the defendant.25
The Court then addressed the middle-ground situation in which the
defendant has not affirmatively indicated, one way or another, whether the defendant
wishes to appeal. In that situation, the Court stated, it is necessary to examine an
antecedent question - i.e., whether the attorney unreasonably failed to consult with the
26
defendant about their right to appeal.
The Court acknowledged that, because the
decision to appeal rests with the defendant, "the better practice is for counsel routinely
27
to consult with the defendant regarding the possibility of an appeal."
But the Court
declined to adopt a bright-line rule that, as a constitutional matter, every failure to consult
28
with the defendant about an appeal constitutes per se deficient performance.
Rather, the Court held that a defense attorney violates a defendant's right
to competent counsel if the attorney fails to consult with the defendant about the
possibility of filing an appeal in one of two circumstances: (1) when the defendant has
reasonably demonstrated to counsel an interest in appealing, or (2) when there are
objective reasons to think that a rational defendant would want to appeal (for example,
29
because there are nonfrivolous grounds for appeal). Ultimately, the Court held that the
question of whether counsel performed deficiently must be based on "all the information
25 Id.
26 Id. at 478.
27 Id. at 479.
28 Id. at 478-80.
29 Id. at 480.
- 9 - 2738
----------------------- Page 10-----------------------
counsel knew or should have known," and that the touchstone of the analysis is
30
reasonableness.
The Court further held that if a defendant establishes that their attorney was
incompetent in failing to file a notice of appeal as directed, or in failing to meaningfully
consult with the defendant as the circumstances required, the defendant is not required
to show that the appeal would have been meritorious. Instead, in order to restore the
right to appeal, the defendant need only show that, but for the attorney's incompetence,
the defendant would have timely filed the appeal.31
In other words, the defendant need
only show that they would have pursued the proceeding if properly advised, not that the
proceeding itself would have been successful.
These dual holdings - that an attorney has a duty to meaningfully consult
with a defendant about their appellate rights as the circumstances require and that
prejudice is shown by establishing that, but for this incompetence, a timely appeal would
have been filed - were later applied and extended by this Court.
30 Id. at 480-81. The Court also expressed its belief that, in the vast majority of
cases, "courts evaluating the reasonableness of counsel's performance using the inquiry we
have described will find . . . that counsel had a duty to consult with the defendant about an
appeal." Id. at 481.
31 Id. at 484. This is sometimes called "presumed prejudice" - i.e., the defendant
is presumed to have suffered an injury from the failure to file the appeal, and the defendant
need not show that any particular issue would have succeeded on the merits. But this phrase
does not mean the defendant need not show any prejudice. The defendant must still show
that but for counsel's deficient failure to consult with them about an appeal, the defendant
would have timely appealed. That is, prejudice in this context is defined as the deprivation
of a proceeding, rather than the deprivation of a successful proceeding. As the Supreme
Court said in Flores-Ortega, "If the defendant cannot demonstrate that, but for counsel's
deficient performance, he would have appealed, counsel's deficient performance has not
deprived him of anything, and he is not entitled to relief." Id.
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----------------------- Page 11-----------------------
In Harvey v. State, we recognized that a defense attorney is obligated, at the
conclusion of a criminal case in the trial court, to meaningfully consult with a convicted
client about the possibility of pursuing an appeal in either of two situations: "(1) when
the defendant has given the attorney a reasonable indication that they are interested in
appealing, or (2) when there are objective reasons to think that a rational person in the
defendant's position might want to appeal."32
We held that this duty to meaningfully
consult about the possibility of filing an appeal and the likelihood of success applies to
33
both court-appointed and retained counsel. Finally, we held that if the defendant
decides to pursue an appeal of their conviction, the attorney - whether court-appointed
or private - must take steps to preserve the defendant's right to appeal if the defendant
34
does not yet have a substitute attorney to take the needed steps.
We have extended this duty to court-appointed attorneys who represent a
35
criminal defendant in post-conviction relief proceedings in the trial court.
In Alaska,
regardless of whether a direct appeal is filed, a criminal defendant may file a collateral
attack on their conviction, initiating a "post-conviction relief" proceeding in the original
trial court of conviction. Claims that could have been raised on direct appeal generally
36
cannot be raised in an application for post-conviction relief. But certain claims can
only be raised for the first time in an application for post-conviction relief - for
32 Harvey v. State, 285 P.3d 295, 305 (Alaska App. 2012) (citing Flores-Ortega, 528
U.S. at 480). As we noted earlier, we declined to decide in Harvey whether a criminal
defense attorney has a duty to consult with a convicted client about the possibility of f iling
an appeal outside of these two contexts. Id. at 297.
33 Id. at 306.
34 Id. at 297, 302, 306.
35 See Wassilie v. State, 331 P.3d 1285, 1289 (Alaska App. 2014).
36 AS 12.72.020(a)(2).
- 11 - 2738
----------------------- Page 12-----------------------
37
example, most claims of ineffective assistance of counsel, or claims of newly
discovered evidence after the window for filing a motion for a new trial in the original
criminal case has expired.38
This Court has appellate jurisdiction over post-conviction relief
proceedings. Thus, if a post-conviction relief applicant (i.e., the criminal defendant) is
unsuccessful in the trial court, the applicant has the right to appeal that decision to this
Court. Like a direct appeal, an appeal from a final post-conviction relief judgment is a
"matter of right," in that the applicant has the right to a decision on the merits in this
Court. And in Alaska, indigent criminal defendants are entitled to the assistance of
court-appointed counsel to litigate a first application for post-conviction relief and any
39
appeal from the trial court's decision on that application.
37 See AS 12.72.010(9); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984)
(holding that, because the trial record is ordinarily insufficient to allow an appellate court to
resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance
claims will generally only be addressed on appeal when the claims have been litigated in a
new trial motion or in an application for post-conviction relief).
38 See Alaska R. Crim. P. 33(c) ("A motion for a new trial based on the ground of
newly discovered evidence may be made only before or within 180 days after final
judgment[.]"); AS 12.72.010(4) (allowing post-conviction relief claims based on material
facts not previously presented and heard); Alaska R. Crim. P. 35.1(a)(4) (same).
39 AS 18.85.100(a), (c); Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (holding
that the due process clause of the Alaska Constitution - a rticle I, section 7 - guarantees
the right to counsel in a first application for post-conviction relief); Wassilie, 331 P.3d at
1289-91 (recognizing that an indigent defendant is entitled to court-appointed counsel when
litigating an appeal from the trial court's decision on a first post-conviction relief application,
including a dismissal based on a certificate of no arguable m erit). We note that there is no
federal constitutional right to counsel in a post-conviction collateral proceeding.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
- 12 - 2738
----------------------- Page 13-----------------------
In Wassilie v. State, we addressed a particular post-conviction relief
situation - where court-appointed post-conviction relief counsel files a certificate of no
arguable merit as to the defendant's application.40 We held that even an attorney who
files a certificate of no merit has an obligation "to ascertain [the defendant's] desires
regarding a potential appeal, and to take the steps necessary to preserve [the] right of
41
appeal if that is what [the defendant] wishe[s] to do."
These final obligations are
"components of the attorney's duty as the defendant's representative in the trial court -
analogous to the duty we recognized in Harvey v. State for trial attorneys who represent
42
defendants in criminal prosecutions." We recognized that there were distinctions
between the original criminal prosecution and the post-conviction relief context, but we
ultimately concluded that "these distinctions [did] not call for a different result" in post-
43
conviction relief cases.
In sum, under Broeckel, Harvey, and Wassilie, a criminal defendant in
Alaska has the right to appeal a final criminal or post-conviction relief judgment, and a
criminal defendant who is indigent is entitled to court-appointed counsel - and the
effective assistance of that counsel - in pursuing a direct appeal or an appeal from a
judgment on a first post-conviction relief application. If a defendant's attorney
unreasonably fails to consult with the defendant regarding the appeal, and the defendant
40 Wassilie, 331 P.3d at 1286; see also Alaska R. Crim. P. 35.1(e)(2) (requiring court-
appointed post-conviction relief counsel to pursue one of three options when representing
a post-conviction relief applicant: file an amended application for post-conviction relief, rest
on the claims raised in the defendant's pro se application, or file a certificate of no arguable
merit, certifying that the defendant has no colorable claims for relief).
41 Wassilie, 331 P.3d at 1288.
42 Id. at 1290.
43 Id. at 1288, 1290-91.
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----------------------- Page 14-----------------------
can show a reasonable possibility that the attorney's deficient representation was the but-
for cause of their failure to appeal, then the defendant is entitled to reinstatement of the
appeal, regardless of a showing of merit on any of the underlying claims of error.
Why we conclude that an appellate attorney has a duty to consult with their
client regarding the possibility of filing a petition for hearing, and that the
failure to consult can form the basis for an ineffective assistance of counsel
claim
As we noted earlier, if a criminal defendant's appeal is unsuccessful in this
Court, the defendant may seek review in the Alaska Supreme Court by filing a petition
for hearing - i.e., a pleading challenging this Court's ruling on one or more issues and
44
requesting the supreme court's review.
Unlike an appeal in this Court, the supreme
court's decision to grant or deny a petition for hearing - i.e., its decision to review the
45
merits of a case - is discretionary on the part of that court. That is, a party has no right
to a decision on the merits. However, a party has the right to request such review
46
through a petition for hearing from a final decision of this Court.
Thus, the question we must confront is whether, and under what
circumstances, an appellate attorney before this Court has an obligation to inform their
client of an adverse final decision and the option of filing a petition for hearing in the
supreme court. In short, we must decide whether to extend the rule of Roe v. Flores-
Ortega and Harvey v. State to the petition for hearing context.
44 Alaska R. App. P. 301-05.
45 Compare AS 22.05.010(d) & AS 22.07.030, with AS 22.07.020(d).
46 See AS 22.07.030 (providing that "[a] party may apply to the supreme court for
review of a final decision of the court of appeals"); Alaska R. App. P. 302(a)(1) (providing
that "[a] petition for hearing may be filed in the supreme court with respect to any final
decision of the court of appeals").
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----------------------- Page 15-----------------------
As an initial matter, we note that an appellant's attorney has an ethical duty
to confer with their client regarding the status of the appeal and doing so is part of their
duties to their client in this Court.47
Under Alaska Professional Conduct Rule 1.4(a), "A
lawyer shall keep a client reasonably informed about the status of a matter undertaken
on the client's behalf[.]" The lawyer must also "explain a matter to the extent reasonably
48
necessary to permit the client to make informed decisions regarding the representation."
These rules clearly require an attorney to inform a criminal appellant when this Court
renders a decision - and to discuss the option of filing a petition for hearing to the
49
supreme court.
We conclude that the failure to fulfill this ethical duty can also amount to
ineffective assistance of counsel. We reach this conclusion for several reasons.
First, the petition for hearing is an important part of the appellate process
in Alaska, and it serves as the final opportunity in state court for the defendant to have
their claims heard. Under the Alaska Appellate Rules, the appellate process concludes
only after a petition for hearing has been disposed of, or the time period for filing a
47 Cf. Wassilie, 331 P.3d at 1288-90 (recognizing that, under Alaska Professional
Conduct Rule 1.16, an attorney representing a post-conviction relief applicant has a duty,
before terminating representation, to ascertain whether the applicant wishes to appeal and
ensure that, if necessary, the right to appeal is preserved - and that doing so is a
"component[] of the attorney's duty as the defendant's representative in the trial court -
analogous to the duty we recognized in Harvey v. State for trial attorneys who represent
defendants in criminal prosecutions").
48 Alaska R. Prof. Conduct 1.4(a).
49 See also ABA Standards for Criminal Justice: Defense Function § 4-9.2(i) (4th
ed. 2017) (providing that, if further appellate review is possible, appellate counsel should
advise of further options and deadlines).
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----------------------- Page 16-----------------------
50
petition for hearing has passed. That is, in both the direct appeal and post-conviction
relief contexts, the petition for hearing is a continuation - and ultimately the completion
- of the state appellate process.51
As the Hawai'i Supreme Court has explained, review
before a state's highest court "provides the last pathway to ensure that the defendant's
substantial rights were observed during the trial and sentencing phases of the
52
proceedings."
50 See Alaska R. App. P. 507(b), (c), (d) (providing that the judgment of the appellate
court takes effect and full jurisdiction over the case returns to the trial court on the day after
the time for filing a petition for hearing expires, on the day after the petition for hearing is
denied, or, in a case decided by the supreme court, on the day after the time for filing a
petition for rehearing expires or on the day after the supreme court disposes of the case on
rehearing).
51 Cf. Kargus v. State, 169 P.3d 307, 313 (Kan. 2007) (recognizing that "while the
determination of whether review will be granted is discretionary with th[e] [supreme] court,
the right to petition for review is not qualified or contingent. It is a right which is a part of
'the appeal' and one of the stages in the proceedings to which the right to counsel attaches");
People v. Valdez, 789 P.2d 406, 408 (Colo. 1990) (noting that, although the Colorado
Supreme Court had absolute discretion whether to grant or deny a petition for discretionary
review, such a petition was "an application of right" - i.e., the criminal defendant "had a
right to file his application for certiorari review" and the concomitant right to the assistance
of counsel in preparing the petition).
52 State v. Uchima, 464 P.3d 852, 863 (Haw. 2020). The Alaska Supreme Court has
decided questions of law involving substantial rights on petitions for hearing in both direct
criminal appeals and post-conviction relief cases. See, e.g., Young v. State, 374 P.3d 395,
399 (Alaska 2016) (on defendant's petition for hearing in direct appeal, adopting new test
for evaluating admissibility of out-of-court eyewitness identifications); Adams v. State , 261
P.3d 758, 764 (Alaska 2011) (on defendant's petition for hearing in direct appeal, deciding
the plain error standard); Stone v. State, 255 P.3d 979, 980-81 (Alaska 2011) (on defendant's
petition for hearing in post-conviction relief case, holding that defendant had right to require
court-appointed counsel to file a petition for discretionary review of sentence); Gudmundson
v. State, 822 P.2d 1328, 1330-31 (Alaska 1991) (on defendant's petition for hearing in
post-conviction relief case, holding that defendant's claim challenging a statute's
(continued...)
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----------------------- Page 17-----------------------
Second, as a practical matter, there is a short time frame for filing a petition
for hearing; any petition for hearing must be filed within thirty days of this Court's
decision (fifteen days at the time of Mack's appeals).53
Thus, like a defendant seeking
to file an initial appeal, a would-be petitioner "needs effective representation and advice
in [a] relatively short period" and "it is often impossible or impracticable for the
defendant to obtain substitute counsel, and to meaningfully consult with the new
54
attorney, within this short time frame."
To deprive a criminal defendant of effective
consultation at this stage would be inconsistent with the fair and efficient administration
55
of justice.
Third, other jurisdictions have held that an attorney in a criminal appeal has
an obligation to inform their client of the right to seek further review in the state's
highest court and that the failure to do so can form the basis of an ineffective assistance
52 (...continued)
constitutionality was "jurisdictional in character" and could be brought at any time).
53 Alaska R. App. P. 303(a); see Supreme Court Order No. 1823 (dated Apr. 2, 2014;
eff. Oct. 15, 2014) (changing deadline for filing a petition for hearing from f ifteen days to
thirty days).
54 Wassilie v. State, 331 P.3d 1285, 1288 (Alaska App. 2014) (citing Harvey v. State,
285 P.3d 295, 304 (Alaska App. 2012)).
55 See Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000), aff'd in part, 74 P.3d
889, 895 (Alaska 2003) ("[I]t would be absurd [for a defendant] to have the right to
appointed counsel who is not required to be competent." (quoting Iovieno v. Comm'r of
Corr., 699 A.2d 1003, 1010 (Conn. 1997))); see also Risher v. State, 523 P.2d 421, 423
(Alaska 1974) ("The assistance must be 'effective' to be of any value.") (citations omitted).
Cf. Uchima, 464 P.3d at 863 (noting that discretionary review before the state's highest court
"is an oftentimes complicated part of the criminal process such that not providing a defendant
the assistance of counsel would restrict the defendant's ability to be meaningfully heard")
(citations omitted).
- 17 - 2738
----------------------- Page 18-----------------------
56
claim. This includes jurisdictions where there is no further right to the assistance of
57
counsel in actually filing the petition. Particularly in Alaska - where appointed
counsel continues to represent an indigent defendant on a petition for hearing58
- an
56 See, e.g., People v. Valdez, 789 P.2d 406, 407-08 (Colo. 1990); Kargus v. State,
169 P.3d 307, 313 (Kan. 2007); Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App.
2006); Tolliver v. State, 629 S.W.2d 913, 915 (Tenn. Crim. App. 1981); Dodson v. Dir. of
Dep't of Corr., 355 S.E.2d 573, 577 (Va. 1987); State v. Mosley, 307 N.W.2d 200, 217-18
(Wis. 1981).
57 See, e.g., Ex parte Owens, 206 S.W.3d at 673 (holding that, while an attorney need
not prepare a petition for discretionary review or advise on the merits of seeking such review,
the appellate attorney "must not neglect to timely inform his client that he has the right to
seek such review," even in instances where the attorney filed an Anders brief, i.e., a brief
explaining why there are no arguable claims, in the intermediate appellate court); Mosley ,
307 N.W.2d at 217-18 (holding that, if appointed counsel determines that a discretionary
petition to the state supreme court has no arguable merit, the attorney need not file the
petition but must still explain the reasons to the defendant to assist the defendant in preparing
a list of pro se reasons for review); Tolliver, 629 S.W.2d at 915 (holding that, even though
the attorney has no obligation to pursue discretionary appellate review on the defendant's
behalf, the attorney must alert the defendant to the possibility of seeking discretionary review
and "failure of . . . counsel to so advise [the defendant] of this right may result in a finding
that his counsel ineffectively represented him").
58 See Alaska R. App. P. 209(b)(4); Latham v. Anchorage , 165 P.3d 663, 664 (Alaska
App. 2007) (discussing AS 18.85.100(a)). The superior court in this case incorrectly
interpreted the language of AS 18.85.100(c) as precluding the appointment of counsel on a
"petition for hearing" in a post-conviction relief case. In 1995, the legislature amended AS
18.85.100(c) to establish certain limits on the right to representation in post-conviction relief
cases, precluding the appointment of counsel for purposes of bringing "a petition for review
or certiorari from an appellate court ruling on an application for post-conviction relief[.]"
AS 18.85.100(c), enacted by SLA 1995, ch. 79, § 10. The superior court interpreted this
language as including petitions for hearing.
But a "petition for hearing" is distinct from a "petition for review." A "petition
for hearing" is a request for review of a final appellate court decision - i.e., a request filed
in the next highest appellate court (generally, the supreme court) following a final decision
(continued...)
- 18 - 2738
----------------------- Page 19-----------------------
attorney's duties to their client in this Court include the obligation to inform them of an
adverse final decision and the right to seek review of that decision in the supreme court.
What standard of ineffective assistance of counsel applies when a
defendant claims that appellate counsel failed to inform them of the right
to file a petition for hearing
The next question is what standard of ineffective assistance of counsel -
i.e., what standard of competence and prejudice - applies to the type of claims raised
by Mack.
The Kansas Supreme Court addressed these questions in a decision we find
persuasive. In Kargus v. State, the Kansas court considered a situation at one of the
extremes addressed in Flores-Ortega : a criminal defendant claimed that, after the
Kansas Court of Appeals affirmed his convictions on direct appeal, his appellate counsel
failed to file a petition for discretionary review in the Kansas Supreme Court, despite his
request that a petition be filed.59
(In Kansas, this discretionary petition is called a
"petition for review.") The defendant argued that the failure to file the petition
constituted ineffective assistance of counsel entitling him to reinstatement of his right to
58 (...continued)
in the intermediate appellate court. A "petition for review" is a request for interlocutory
review, the purpose of which is to challenge a particular court ruling prior to final judgment.
Compare Alaska R. App. P. 302, with Alaska R. App. P. 402. The legislative history of the
enactment of AS 18.85.100(c) shows that the legislature specifically rejected a version of the
bill that would have eliminated the right to representation on "a petition for hearing from an
appellate court ruling on an application for post-conviction relief[.]" See House Bill 201,
19th Leg., 1st Sess., at § 10 (as introduced on Feb. 27, 1995).
59 Kargus v. State, 169 P.3d 307, 309 (Kan. 2007).
- 19 - 2738
----------------------- Page 20-----------------------
file the petition. The defendant argued that, as in Flores-Ortega, he did not need to show
that he would have prevailed on the petition itself.60
The Kansas court held that a criminal defendant is entitled to the
appointment of counsel in filing (or defending) a petition for discretionary review to the
61
supreme court. The court further held that the "statutory right to counsel includes the
62
right to effective assistance of counsel."
The court therefore confronted the question - germane to our decision here
- of what standard of ineffective assistance of counsel applies when the complaint is
that counsel failed to file a discretionary petition for supreme court review. The Kansas
court compared the federal test for ineffective assistance of counsel claims - i.e., the
"Strickland" test - with the test that applies specifically to ineffectiveness claims in the
context of failing to file or consult with a criminal defendant regarding the right to appeal
63
- i.e., the Flores-Ortega test.
To establish a claim of ineffective assistance of counsel under Strickland
v. Washington, a criminal defendant must show that (1) the attorney's performance fell
below an objective standard of reasonableness (the performance prong); and (2) but for
the attorney's incompetent performance, there is a reasonable probability that the
60 Id. at 309-10.
61 Id. at 312-13. The court added, however, that, even if there were no right to
counsel to file for discretionary review, the defendant's appellate attorney would still have
at least "the obligation merely to inform the defendant of the fact that his or her conviction
ha[d] been affirmed by the Court of Appeals and that the defendant could pursue
discretionary review on his or her own." Id.
62 Id. at 313.
63 Id. at 313-16.
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----------------------- Page 21-----------------------
64
outcome of the proceedings would have been different (the prejudice prong). (The
general test in Alaska - set out in Risher v. State - is similar, but has a lower prejudice
threshold, requiring a criminal defendant to show only that there is a "reasonable
possibility" that the attorney's incompetence contributed to the conviction.65)
As we noted earlier, however, under Flores-Ortega, a defendant need not
show that the appeal itself would have resulted in a reversal of their conviction or
sentence; a defendant need only show that, but for the attorney's deficient conduct -
i.e., the failure to consult or timely file the appeal - the defendant would have filed an
appeal.
After addressing each standard, the Kansas Supreme Court extended
Flores-Ortega to "petitions for review" - the type of discretionary petitions that are
66
called "petitions for hearing" in Alaska. The court concluded that Flores-Ortega set
out the appropriate standard because - like the failure to advise a criminal defendant
regarding the initial right to file an appeal - the failure to advise on, or timely file, a
67
That is, while
discretionary petition involves the loss of an entire proceeding.
Strickland applies to an attorney's deficient performance during the course of a
proceeding, Flores-Ortega applies "when counsel's performance causes a forfeiture of
64 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
65 State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995) (citing Risher v. State,
523 P.2d 421, 425 (Alaska 1974)).
66 Kargus, 169 P.3d at 320.
67 Id. at 315-16 (comparing Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000), with
Strickland, 466 U.S. at 687).
- 21 - 2738
----------------------- Page 22-----------------------
a proceeding" - that is, when the defendant is deprived of any assistance in the
68
proceeding.
The Kansas court then set out the standard for evaluating a claim that
counsel was ineffective for failing to file a petition for discretionary review following an
adverse decision in the intermediate appellate court - a standard that reflects the Flores-
Ortega framework:
(1) If a defendant has requested that a petition for review be
filed and the petition was not filed, the appellate attorney
provided ineffective assistance; (2) a defendant who
explicitly tells his or her attorney not to file a petition for
review cannot later complain that, by following instructions,
counsel performed deficiently; (3) in other situations, such as
where counsel has not consulted with a defendant or a
defendant's directions are unclear, the defendant must show
(a) counsel's representation fell below an objective standard
of reasonableness, considering all the circumstances; and
(b) the defendant would have directed the filing of the
[69]
petition for review.
The court further held that, consistent with Flores-Ortega, the defendant did not need to
show that the petition would have been granted or that, after consideration of the petition,
70
the supreme court would have granted relief to the defendant.
We conclude that the test set out by the Kansas Supreme Court is consistent
with our case law, and we adopt it. We accordingly extend the rule of Flores-Ortega to
petitions for hearing.
68 Id. at 314, 316.
69 Id. at 320.
70 Id. at 318, 320.
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----------------------- Page 23-----------------------
In particular, as we previously discussed, an attorney before this Court has
an obligation to inform a client about an unsuccessful appeal and the right to file a
petition for hearing in the supreme court. The failure to do so can form the basis of an
ineffective assistance of counsel claim.
But in the context of the third situation discussed in Kargus - i.e., where
counsel has not consulted with a defendant or the defendant's directions are unclear -
counsel's failure to adequately inform a defendant a bout the right to file a petition for
hearing is not automatically ineffective as a constitutional matter. Rather, "where
counsel has not consulted with a defendant or a defendant's directions are unclear, the
defendant must show [that] counsel's representation fell below an objective standard of
reasonableness, considering all the circumstances[.]"71
Generally, this can be
demonstrated through evidence establishing one of the two prongs set out in Flores-
Ortega and Harvey : either that (1) the defendant has given the attorney a reasonable
indication that they are interested in pursuing further review if they lose in this Court, or
(2) there are objective reasons to think that a rational person in the defendant's position
72
might want to file a petition for hearing.
(We nonetheless echo the advisement by the
Kansas Supreme Court that best practice is for an appellate attorney to consult with their
client regarding a petition for hearing in all situations, regardless of whether the failure
73
to do so would constitute ineffective assistance of counsel as a constitutional matter. )
71 Id. at 320.
72 Flores-Ortega, 528 U.S. at 480; Harvey v. State, 285 P.3d 295, 305 (Alaska App.
2012).
73 Kargus, 169 P.3d at 320. Cf. Flores-Ortega, 528 U.S. at 479 (recognizing that,
in the context of a trial attorney's duty to a criminal defendant, "the better practice is for
counsel routinely to consult with the defendant regarding the possibility of an appeal," even
if not every failure to do so constitutes ineffective assistance of counsel as a constitutional
(continued...)
- 23 - 2738
----------------------- Page 24-----------------------
If the defendant establishes that their counsel's representation was deficient,
the defendant must further show a reasonable possibility that, but for this deficient
performance, the defendant would have directed the filing of a petition for hearing.74
The
defendant need not show that the petition itself would have resulted in a successful
outcome.
In Mack's case, the superior court required Mack to prove that any petition
would have been successful. The court declined to presume prejudice based largely on
the fact that petitions for hearing are considered "second-tier" appellate review.
But the same concerns raised in Broeckel apply equally in the context of
75
petitions for hearing.
When an attorney unreasonably fails to alert a defendant to the
availability of further review in the supreme court, and as a result of this deficiency, the
defendant fails to file a petition for hearing, the defendant has been deprived of an entire
proceeding. Moreover, requiring that a defendant show that their petition for hearing
would be successful as a condition of allowing an untimely petition would require courts
to engage in almost the same analysis that would be required in deciding the petition for
hearing. And it would impose on this Court, and the superior court, the "essentially
73 (...continued)
matter).
74 See Flores-Ortega, 528 U.S. at 484; Kargus, 169 P.3d at 320.
75 See Kargus, 169 P.3d at 312-13, 316 (recognizing the distinction between the first-
tier appellate stage, where the right to counsel is constitutional, and the second-tier
discretionary review stage, where the right to counsel under Kansas law is statutory, but
concluding that presumptive prejudice is the more appropriate standard because of the loss
of an entire proceeding).
- 24 - 2738
----------------------- Page 25-----------------------
76
circular task of reviewing the propriety of [their] own legal decisions." Identical
concerns about judicial efficiency therefore apply in this context.
To sum up: We hold that an attorney representing a client in this Court has
an obligation to consult with their client about an adverse decision rendered by this Court
and the right to file a petition for hearing seeking further review in the supreme court.
If a defendant (like Mack) argues in a post-conviction relief proceeding that their
appellate attorney failed to inform them about the right to file a petition for hearing, the
defendant should be permitted to file an untimely petition for hearing, without proving
the merits of the underlying issues, if three conditions are met:
(1) the post-conviction relief application is deemed to be
timely,
(2) the defendant establishes that their appellate attorney's
failure to consult with them regarding the petition for hearing
to the supreme court was unreasonable under the totality of
the circumstances, and
(3) the defendant establishes a reasonable possibility that
their attorney's unreasonable failure to consult with them was
the but-for cause of their failure to file a petition for
hearing.[77]
A more detailed look at the facts of Mack's case and why we remand for
further proceedings
We now return to the facts of this case.
76 Broeckel v. State, 900 P.2d 1205, 1208 (Alaska App. 1995).
77 We express no opinion regarding the standard that should govern the supreme
court's acceptance of a late-filed petition for hearing - i.e., a petition that is filed directly
in the supreme court outside the 30-day deadline, but generally still within the relatively
immediate aftermath of a decision in this Court. See Alaska R. App. P. 303(a) (setting a 30-
day deadline for filing a petition for hearing in the supreme court).
- 25 - 2738
----------------------- Page 26-----------------------
As we noted earlier, Mack filed a second application for post-conviction
relief, which is the genesis of the current appeal. In this application, Mack alleged that
his appellate attorney in his first post-conviction relief action (Assistant Public Advocate
Dan Bair) neglected to file a petition for hearing or at least inform him of that option
following his unsuccessful post-conviction relief appeal in this Court. Mack also raised
a "layered" claim for relief. In this layered claim, Mack alleged that his prior post-
conviction relief attorney in the superior court (Michael Smith) incompetently failed to
include, as one of the claims for post-conviction relief, that Mack's direct appeal attorney
(Randall Cavanaugh) neglected to file a petition for hearing, or at least inform Mack of
that option following his unsuccessful direct appeal in this Court.
Mack argued that both appellate attorneys were ineffective, pointing out
that their inaction precluded him from further pursuing his claims and seeking habeas
corpus relief in federal court (because he had failed to exhaust his state remedies).78
Mack argued that, to establish prejudice, he was not required to show that he would have
prevailed on the issue(s) that his attorney could have raised in a petition for hearing;
rather, he needed to show only that he would have filed a petition for hearing had he
been properly advised of his right to do so. Mack alleged that he met this standard, and
he therefore asked the superior court to restore his right to file petitions for hearing in
both of his prior appeals.
With his application, Mack provided the superior court with affidavits from
himself and the three attorneys around whom Mack's claims were centered.
Dan Bair represented Mack on appeal of the denial of his first post-
conviction relief application. In his affidavit, Bair stated that within a week of this
Court's decision on appeal, Bair sent a copy of our decision to Mack, along with a letter.
78 See 28 U.S.C. § 2254(b)(1).
- 26 - 2738
----------------------- Page 27-----------------------
In the letter, Bair briefly discussed his opinion of this Court's resolution of Mack's post-
conviction appeal, noting that the governing case law on the issue was not favorable.
Bair's letter, which is in the record before us, did not include any reference
to the possibility of filing a petition for hearing in the Alaska Supreme Court or any
mention of the then fifteen-day deadline. Instead, Bair advised Mack about pursuing a
"Grinols action" - that is, a successive post-conviction relief action that alleges that the
defendant's first post-conviction relief attorney provided ineffective assistance of
counsel. Bair noted in the letter: "With regard to your Grinols issue, now that the Court
of Appeals has issued its decision, the clock has begun on your Grinols action. I would
urge you to file your Grinols [application] now - if you have not done so." (He did not
identify the issues that he thought Mack might wish to raise in a Grinols application.)
In his later affidavit, Bair acknowledged that neither his letter nor his
handwritten notes of his conversations with Mack contained any reference to a petition
for hearing. He also attested that he had no memory of discussing the issue with Mack.
Bair stated that he "had no tactical reason for not informing Mr. Mack what a petition for
hearing was or his right to proceed with one," as he viewed the decision as belonging to
Mack.
(Another indication that Bair did not inform Mack about his right to file a
petition for hearing is the fact that Bair misadvised Mack about the running of the
"clock" on Mack's Grinols application. There is a one-year time period for filing a
Grinols application. This period does not begin running until the decision on the prior
application for post-conviction relief is "final under the Alaska Rules of Appellate
Procedure"79
- and a decision is not final under the Alaska Appellate Rules until the
79 AS 12.72.025.
- 27 - 2738
----------------------- Page 28-----------------------
80
time for filing a petition for hearing has run. Thus, the time period for filing a Grinols
application did not begin with the issuance of this Court's decision, as Bair's letter
stated; it started only after the deadline for filing a petition for hearing in the supreme
court had passed. Bair's letter made no reference to this additional period.)
Michael Smith, on contract with the Office of Public Advocacy, represented
Mack in his first application for post-conviction relief in the superior court. In his
affidavit, Smith stated that he did not recall whether he was aware that Randall
Cavanaugh (Mack's attorney on direct appeal) had not filed a petition for hearing. He
also stated that he "was aware that filing a petition for hearing to the Alaska Supreme
Court is necessary to preserve issues for a potential federal habeas corpus claim" and that
he "did not discuss with Mr. Mack the fact that, due to Cavanaugh's failure to file a
petition for hearing, Mr. Mack was effectively barred from litigating his case in federal
court."
Randall Cavanaugh provided an affidavit stating that he could not say "with
absolute[] certainty" that he spoke with Mack about "a petition for review [sic]81
to the
Alaska Supreme Court given the passage [of] time and lack of materials to refresh [his]
recollection." He did note that he typically advises his clients "regarding their petition
rights," but he believed that the Office of Public Advocacy, which contracted with
Cavanaugh to represent Mack on direct appeal, was not paying for "discretionary
80 Alaska R. App. P. 507(d). At the time of Mack's post-conviction relief appeal, the
rules governing the return of j urisdiction to the trial court following an appeal were set out
in Alaska Appellate Rules 507 and 512. See Supreme Court Order No. 1973 (dated
Aug. 18, 2021; eff. Apr. 15, 2022).
81 As discussed previously, the phrases "petition for review" and "petition for
hearing" are terms of art and distinct from one another under the Alaska Appellate Rules.
A "petition for hearing" is a request for review of a final appellate court decision, while a
"petition for review" is a request for interlocutory review.
- 28 - 2738
----------------------- Page 29-----------------------
actions" at the time. In contrast, Cavanaugh did recall discussing with Mack the option
of filing a post-conviction relief application.
For his part, Mack maintained that he "wanted to do everything possible in
state and federal court" to challenge his conviction and that he never told an attorney to
forgo any legal option. Specifically, Mack stated that he did not remember whether he
had discussed with Cavanaugh or Bair the option of filing an "appeal" in the supreme
court, but had he known he could "have appealed [each] case further," he would have
done so.82
The State filed a motion to dismiss Mack's subsequent post-conviction
relief application, arguing that Mack did not have a right to counsel to file a "second-tier,
discretionary appeal" like a petition for hearing. The State also argued that Mack failed
to demonstrate that he was prejudiced by the absence of an opportunity to file a petition
for hearing because he did not show that he could have prevailed on any appellate issues
or federal habeas litigation if a petition for hearing had been filed.
Without holding a hearing, the superior court dismissed Mack's application.
The court agreed with Mack that he was entitled to "meaningful consultation" from his
appellate attorneys regarding his right to file a petition for hearing in the supreme court
- that his attorneys had a "duty to counsel" him "as to appellate procedure." But the
82 The State takes Mack to task for stating that he would have "appealed the case"
to the supreme court, rather than file a "petition for hearing," noting that a criminal defendant
has no right to "appeal" from this Court to the supreme court. The State asserts that "Mack
offered no evidence that he would have filed a petition for hearing (i.e., as opposed to an
'appeal')." But this argument elevates form over substance and suggests that an indigent
defendant's lack of understanding of appellate terminology is dispositive, when it is
otherwise clear in the context of Mack's affidavit - and the larger issues being litigated -
that Mack was asserting that he would have pursued a further remedy in the supreme court
had he known of that option. Indeed, we note that, in its order, the superior court made the
same semantic mistake as Mack.
- 29 - 2738
----------------------- Page 30-----------------------
court nonetheless concluded either that this obligation had been fulfilled or that Mack
could not show prejudice.
More specifically, with respect to Bair - Mack's attorney in his post-
conviction relief appeal - the court found that Bair did meaningfully consult with Mack
about his appellate rights when he sent Mack a letter following his unsuccessful appeal
in this Court, telling Mack that he could file a Grinols action. With respect to Cavanaugh
- Mack's attorney on direct appeal - the court found that while Mack had set forth a
prima facie case that Cavanaugh failed to meaningfully consult with him about his right
to file a petition for hearing, Mack did not show a reasonable possibility that he would
have prevailed on the issues that could have been raised in the petition for hearing in his
direct appeal.
Our resolution of Mack's claim against his appellate counsel in his first
post-conviction relief application
We disagree with the superior court that Mack failed to set out a prima facie
case of ineffective assistance as to Bair, his first post-conviction appellate counsel. In
Bair's letter (sent in the days following the issuance of this Court's decision), Bair
advised Mack about a pursuing a "Grinols action": "With regard to your Grinols issue,
now that the Court of Appeals has issued its decision, the clock has begun on your
Grinols action. I would urge you to file your Grinols [application] now - if you have
not done so." The superior court believed that Bair's statements reflected a "tactical
choice" to seek post-conviction relief rather than relief through a petition for hearing.
But this finding is flawed, both as a matter of fact and as a matter of law.
First, as a factual matter, Bair's letter does not mention the possibility of
filing a petition for hearing. Indeed, in his affidavit, Bair acknowledged that he likely
did not advise Mack of his right to file a petition for hearing - and stated that he had no
- 30 - 2738
----------------------- Page 31-----------------------
tactical reason for failing to do so. In short, there is no indication in the current record
that Bair even considered a petition for hearing.
The State argues that Mack failed to establish that Bair did not discuss with
him the possibility of filing a petition for hearing. The State points to the attorney's lack
of memory of such discussions as evidence that the discussions may have happened. But
in doing so, the State mistakenly relies on the "clear and convincing evidence" standard
of proof. At this stage in the proceedings - where the superior court was determining
whether Mack had established a prima facie case for relief - the superior court was
obliged to presume the truth of any well-pleaded assertions of fact, including Bair's
assertion that he likely failed to advise Mack of his right to file a petition for hearing and
had no tactical reason for not doing so.83
Any dispute of material fact must be decided
84
by the superior court after holding an evidentiary hearing.
Second, as a legal matter, the court's conclusion that Bair's decision was
tactical is incorrect. A petition for hearing and a post-conviction relief application are
distinct procedural vehicles: a criminal defendant need not forgo one in order to pursue
the other, and many, if not most, defendants pursue both. Indeed, in many
circumstances, a defendant must pursue both to preserve all of their claims for federal
habeas corpus review.
And as we are about to explain, we conclude that the decision whether to
file a petition for hearing is not a "tactical" decision for the attorney but rather a decision
85
for the defendant. We previously left this question open in Smith v. State.
In Smith, we
83 See LaBrake v. State , 152 P.3d 474, 480 (Alaska App. 2007).
84 State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988); see also Alaska R. Crim.
P. 35.1(g).
85 Smith v. State, 185 P.3d 767 (Alaska App. 2008).
- 31 - 2738
----------------------- Page 32-----------------------
examined the related question of whether the decision to file a cross-petition for hearing
86
is a decision for the attorney or for the defendant. In that case, this Court reversed
Smith's convictions, and the State filed a petition for hearing in the supreme court
challenging our decision. The supreme court ultimately reversed our decision and
affirmed Smith's convictions. In post-conviction relief proceedings, Smith argued that
his appellate attorney had provided ineffective assistance of counsel by failing to file a
cross-petition for hearing of a different issue that he had lost in this Court.87
We declared that, given the complexity of the decision to file a cross-
petition for hearing in a case that a defendant has already won in this Court, the decision
88
was a tactical one for Smith's attorney.
In particular, we noted that counsel could
reasonably conclude that urging the supreme court to grant review on an additional issue
might make it more likely that the supreme court would actually grant discretionary
review of the case (and affirm the defendant's convictions), and that the risk was not
worth taking if the additional issue was not a strong one. And because Smith did not
show that his attorney made an unreasonable tactical decision, we affirmed the dismissal
89
of Smith's request for post-conviction relief.
But the decision to seek the supreme court's review after an unsuccessful
appeal in this Court involves a different calculus - and is ultimately a decision for the
defendant after consultation with counsel. In that situation, the failure to file a petition
for hearing deprives the defendant of the benefit of an entire proceeding and the
opportunity to exercise their right to persuade the Alaska Supreme Court to review their
86 Id. at 768-69.
87 Id. at 768.
88 Id. at 769-70.
89 Id. at 770.
- 32 - 2738
----------------------- Page 33-----------------------
90
convictions (and preserve any federal claims for later habeas corpus review). In
contrast, in Smith, the State had already initiated a petition for hearing, and the decision
to cross-petition on a separate issue was therefore more akin to an attorney's strategic
91
decision as to what issues to raise on appeal. Moreover, the tactical considerations
innate to filing a cross-petition for hearing are generally absent when a defendant has lost
in this Court and is deciding unilaterally whether to pursue further appellate review.
We therefore conclude that the superior court erred when it found that Bair
had made a "tactical choice" to pursue a Grinols petition. As a factual matter, Bair
expressly disclaimed that he had any tactical reason for failing to advise Mack of his
right to a petition for hearing. And as a legal matter, the decision to pursue one
procedural vehicle instead of another was not Bair's decision to make.
Accordingly, we must consider whether Mack set forth a prima facie case
that he would have filed a petition for hearing if he had been properly advised. At this
stage in the proceedings, a court is required to accept all well-pleaded assertions of fact
in Mack's application as true and determine whether those assertions of fact, if ultimately
proven, would entitle the applicant to post-conviction relief.92
In assessing whether an
applicant has established a prima facie case for relief, a trial court may not engage in
93
assessments of credibility or weighing of the evidence.
90 See Kargus v. State, 169 P.3d 307, 316 (Kan. 2007); Ex parte Owens, 206 S.W.3d
670, 674 (Tex. Crim. App. 2006).
91 Coffman v. State, 172 P.3d 804, 810 (Alaska App. 2007) ("The normal rule under
Alaska law . . . is that a defendant's appellate attorney has the responsibility of deciding
which issues to raise on appeal.").
92 See LaBrake v. State , 152 P.3d 474, 480 (Alaska App. 2007).
93 Alexie v. State , 402 P.3d 416, 418 (Alaska App. 2017) ("Although a judge may
(continued...)
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Viewing the record in this light, we conclude that Mack set out a prima
facie case that, had his attorneys informed him of the right to file a petition for hearing,
he would have done so.94
Mack averred that he unwaveringly wanted to pursue all of his
legal options to challenge his conviction and that he never told an attorney to forgo any
legal option. Although Mack stated that he did not remember whether he had discussed
with Cavanaugh or Bair the option of filing an "appeal" in the Alaska Supreme Court,
he said that he would have done so had he known he could "have appealed [each] case
further." And Bair's advice to Mack to "file your Grinols [application] now"
underscores Bair's knowledge that Mack - who had been convicted of murder and
received a 99-year sentence - was interested in pursuing further remedies.
In its order, the court found that, even absent a ny further explanation by
Bair, Mack "was presumably aware of the opportunity to appeal," and the court
repeatedly put the burden on Mack to show that he told his attorneys of his desire to
"appeal." But the basis for the court's presumption that Mack was aware of "the
opportunity to appeal" is unclear. And, at this stage of the proceeding, before any
evidence had been taken, the superior court was required to view all factual allegations
in Mack's favor - and credit his statement in his affidavit that, had he known he could
have pursued further appellate review, he would have done so.
93 (...continued)
grant summary judgment and end post-conviction relief litigation short of trial, a judge has
no authority to grant summary judgment based on the judge's pretrial assessments of witness
credibility or pretrial assessments of the comparative strength of the parties' positions.").
94 See David v. State, 372 P.3d 265, 269 (Alaska App. 2016) (recognizing that this
Court reviews de novo the legal question of whether a post-convict ion relief applicant has
set forth a prima facie case for relief).
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----------------------- Page 35-----------------------
For these reasons, we conclude that Mack established a prima facie case of
ineffective assistance of counsel as to Bair. We therefore remand Mack's case for an
evidentiary hearing on this claim.
Our resolution of Mack's "layered" claim against his first post-conviction
relief counsel in the superior court and his direct appellate counsel
With respect to Cavanaugh, we agree with the superior court that Mack set
out a prima facie case of deficient consultation. But the court dismissed the layered
claim of ineffective assistance of counsel against Smith (for failing to challenge the
competency of Cavanaugh), ruling that - although Cavanaugh failed to fulfill his duty
of consultation - Mack did not show that any of the claims Cavanaugh could have
raised in a petition for hearing would have been successful.
As we have already explained, Mack did not need to show that any of the
claims Cavanaugh could have raised in a petition for hearing would have been
successful. He needed only to show a reasonable possibility that, but for Cavanaugh's
failure to inform him about his right to file a petition for hearing, he would have filed a
petition for hearing. And as explained previously, Mack established a prima facie case
on this point.
However, there is an additional wrinkle in Mack's case with respect to
Cavanaugh. Mack did not raise a claim against Cavanaugh until his second post-
conviction application - i.e., his Grinols application. We must therefore determine how
to evaluate prejudice in the context of a layered ineffective assistance of counsel claim
involving the failure to consult regarding a petition for hearing - i.e., a claim that first
post-conviction relief counsel (here, Smith) incompetently failed to challenge the
incompetence of an earlier attorney (Cavanaugh) for failing to inform the defendant
about the right to file a petition for hearing in the supreme court.
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We conclude that, under these particular circumstances, the defendant must
prove three things:
First, the Grinols application must be deemed timely.95
Second, the defendant must show that the failure by their first post-
conviction relief counsel to recognize or pursue the omitted issue constituted
incompetent representation. It is the defendant's burden to negate the possibility that the
96
Clearly relevant to this
attorney chose, for valid tactical reasons, not to raise the issue.
question of competency is whether the defendant knew about the right to file a petition
for hearing and the possible attack on their direct appellate attorney at the time of the
97
defendant's first post-conviction relief application, but failed to mention it.
Finally, where a defendant alleges that their appellate attorney failed to
appraise them of the right to file a petition for hearing, the defendant must show this
failure was unreasonable and that the defendant would have filed the petition but for that
deficient representation. There is no need to establish a reasonable possibility that the
defendant would have prevailed on the petition.
Thus, the key question on remand is whether Smith was ineffective for
failing to raise a claim against Cavanaugh in Mack's first application for post-conviction
95 See AS 12.72.025 (setting a one-year statute of limitations for claims of ineffective
assistance of post-conviction relief counsel).
96 Grinols v. State, 10 P.3d 600, 619 (Alaska App. 2000), aff'd in part, 74 P.3d 889
(Alaska 2003).
97 See id. ("[W]hen a defendant asserts that their post-conviction relief attorney
inexcusably failed to pursue arguments that the defendant's trial attorney was incompetent,
this assertion will be defeated by evidence that the defendant was aware of the possible
attacks on their trial attorney's performance when the first post-conviction relief action was
litigated but failed to mention these potential claims to their post-conviction relief
attorney.").
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----------------------- Page 37-----------------------
relief - i.e., whether Smith unreasonably failed to raise this claim as part of Mack's
post-conviction relief action. Because Mack did not have the benefit of this decision, we
remand this question to the superior court to give Mack an opportunity to amend his
post-conviction relief application to attempt to establish a prima facie case under this
standard.
Conclusion
Accordingly, we VACATE the superior court's order dismissing Mack's
claim for post-conviction relief and REMAND this case for further proceedings
consistent with this opinion.
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