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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. State (4/6/2012) sp-6661
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL C. NELSON, )
) Supreme Court No. S-13100
Petitioner, ) Court of Appeals No. A-8879/8899
)
v. ) Superior Court No. 1KE-00-00161 CI
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6661 - April 6, 2012
)
Petition for Hearing in File No. A-8879 from the Court of
Appeals of the State of Alaska, on appeal from the Superior
Court of the State of Alaska, First Judicial District,
Ketchikan, Michael A. Thompson, Judge.
Appearances: Michael J. Zelensky, Ketchikan, for Petitioner.
Nancy R. Simel, Assistant Attorney General, Office of
Special Prosecutions & Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for Respondent. Dan S.
Bair, Assistant Public Advocate, and Rachel Levitt, Public
Advocate, Anchorage, for Amicus Curiae Office of Public
Advocacy.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
PER CURIAM.
I. INTRODUCTION
A prisoner applied for post-conviction relief, alleging 35 claims of
ineffective assistance of trial counsel. At a deposition trial counsel asserted the Fifth
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Amendment privilege against self-incrimination regarding his representation of the
applicant. The superior court ultimately dismissed all but one post-conviction relief
claim for failure to establish a prima facie case, and the court of appeals affirmed. The
applicant petitioned for our review to determine whether the ordinary presumption of
defense counsel's competence applies when counsel invokes the Fifth Amendment
regarding the representation. We determine it does, but note that an adverse inference
may be drawn in the applicant's favor on specific disputed factual issues if warranted in
an appropriate case. With this clarification, we affirm the court of appeals' decision
because this is not an appropriate case warranting such an inference.
II. FACTS AND PROCEEDINGS
In May 1996 a jury convicted Daniel Nelson of five counts of sexual abuse
of minors. Ronald Hemby represented Nelson at trial. The court of appeals affirmed the
convictions on direct appeal.1 In March 2002 Nelson retained new counsel and filed a
petition for post-conviction relief, alleging 35 claims of ineffective assistance by Hemby.
As a threshold condition for pursuing his ineffective assistance of counsel
claims, Nelson was required to submit an affidavit from Hemby addressing Nelson's
specific claims and Hemby's tactical choices regarding these claims.2 Hemby refused
to provide an affidavit. Hemby had retired and moved to Missouri, so Nelson's attorney
traveled to Missouri to depose Hemby. At the deposition Hemby invoked his Fifth
1 Nelson v. State , No. 6358, 1999 WL 33911988, at *6 (Alaska App.
Nov. 10, 1999) (unpublished). Hemby did not represent Nelson on the direct appeal.
Id. at *1.
2 See Tall v. State, 25 P.3d 704, 708 (Alaska App. 2001) ("We have
repeatedly held that a defendant asserting ineffective assistance of counsel must provide
the court with an affidavit from the former attorney, addressing the various claims of
ineffective representation, or must explain why such an affidavit can not be obtained."
(quoting Peterson v. State , 988 P.2d 109, 113 (Alaska App. 1999))).
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Amendment privilege against self-incrimination and refused to answer any questions
concerning his representation of Nelson. During a break in the deposition, the parties
contacted Superior Court Judge Michael A. Thompson, who conducted an unrecorded,
ex parte telephone conversation with Hemby and upheld Hemby's invocation of the Fifth
Amendment privilege.3 Judge Thompson issued no findings regarding Hemby, but
excused Nelson from the affidavit requirement for his post-conviction relief petition.
On the State's motion Judge Thompson dismissed 34 of Nelson's 35 post-
conviction relief claims for failure to state prima facie claims for relief.4 Nelson moved
for summary judgment on the sole surviving claim, which Judge Thompson ultimately
granted.
Nelson appealed the dismissal of four claims to the court of appeals.5 As
to three of these claims, Nelson argued the superior court committed legal error by
relying on the presumption of competence by Nelson's trial counsel. Specifically,
Nelson argued the presumption of competence should not apply when trial counsel
3 We are unable to discern the specific circumstances of the attorneys' call
to Judge Thompson or why there is no record of the discussion between Judge
Thompson and Hemby. We encourage the creation of an appropriate record of judicial
participation in, and especially resolution of, litigants' out-of-court deposition disputes.
4 In post-conviction relief proceedings the applicant bears the initial burden
of establishing a prima facie case of ineffective assistance of counsel. State v. Jones, 759
P.2d 558, 569-70 (Alaska App. 1988).
5 The State cross-appealed the single grant of post-conviction relief. The
court of appeals remanded the grant of post-conviction relief for reexamination and
explanation. Nelson v. State , Nos. 8879/8899, 2007 WL 1098411, at *12 (Alaska App.
Apr. 11, 2007) (unpublished). On remand the superior court detailed its reason for
granting summary judgment to Nelson and again granted post-conviction relief. The
court of appeals then affirmed the superior court's decision. State v. Nelson, No. 8899,
2008 WL 1914354 (Alaska App. Apr. 30, 2008) (unpublished).
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invoked the Fifth Amendment rather than answer questions regarding the representation.
Because this argument was raised for the first time on appeal, the court of appeals
required Nelson to show plain error.6
The court of appeals was "not convinced that Judge Thompson committed
any error at all, much less that the alleged error was 'plain.' "7 The court rejected
Nelson's implicit argument that Hemby's incompetence could be reasonably inferred
from his invocation of the Fifth Amendment.8 The court stated "the fact remains that,
under our law, no inference can be drawn from a witness's invocation of an evidentiary
privilege."9 The court found the privilege assertion meant only that Hemby became
unavailable as a witness, which "did not negate the presumption of attorney competence
or relieve Nelson of the concomitant burden of affirmatively proving his attorney's
incompetence."10 Accordingly, the court of appeals concluded the superior court did not
commit plain error.
Nelson petitioned for our review, arguing the presumption of competent
representation should not apply when trial counsel invokes the Fifth Amendment.
Notwithstanding the "plain error" analysis relevant to Nelson's appeal to the court of
appeals, we granted Nelson's petition for hearing on the following limited legal question:
6 "That is, [Nelson] must show that any competent judge in Judge
Thompson's position would have recognized, unprompted, that the presumption of
attorney competence no longer applied after Hemby invoked the Fifth Amendment."
Nelson , 2007 WL 1098411, at *6.
7 Id. at *7.
8 Id.
9 Id. at *8 (relying in part on Alaska Evidence Rule 512(a)).
10 Id.
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What effect does defense counsel's invocation of the Fifth Amendment privilege have
on the competence presumption and burden of proof in a post-conviction relief claim
based on ineffective assistance of counsel? We invited the Office of Public Advocacy
to participate as amicus curiae.
III. DISCUSSION
There is "a strong presumption of competence" when evaluating defense
counsel's conduct in a post-conviction relief proceeding.11 To rebut this strong
presumption the applicant must present some "evidence ruling out the possibility of a
tactical reason to explain counsel's conduct."12 If the presumption is not rebutted, an
ineffective assistance finding is precluded.13 If it is rebutted, the applicant must then
show counsel's incompetence contributed to a conviction.14 Because it found the law
prevented any inferences to be drawn from a witness's privilege assertion, the court of
appeals concluded that "[t]he only pertinent consequence" of Hemby's privilege
assertion was that he became unavailable as a witness, which "did not negate the
presumption of attorney competence or relieve Nelson of the concomitant burden of
affirmatively proving his attorney's incompetence."15
We disagree with the court of appeals' statement that as a matter of law no
11 Jones , 759 P.2d at 569 (citing Strickland v. Washington, 466 U.S. 668, 689
(1984)).
12 Id.
13 Id.
14
Risher v. State , 523 P.2d 421, 424-25 (Alaska 1974).
15 Nelson , 2007 WL 1098411, at *8.
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adverse inference could be drawn from Hemby's invocation of the Fifth Amendment.16
Post-conviction relief proceedings are civil in nature.17 Evidence Rule 512(a)'s
prohibition against drawing inferences from a claim of privilege "do[es] not apply in a
civil case with respect to the privilege against self-incrimination."18 The United States
Supreme Court has stated "the Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to probative
evidence offered against them."19 Although the Court was focused on parties to a suit,
other federal courts have extended its conclusion to non-parties in civil proceedings.20
At oral argument the State conceded that in a post-conviction relief
proceeding based on ineffective assistance of counsel, counsel's privilege assertion as
16 Id. at *7-8 (relying on Evidence Rule 512(a)).
17 See Hensel v. State, 604 P.2d 222, 230-31 (Alaska 1979) ("The post-
conviction relief proceeding is not another trial; it is separate from the original criminal
proceeding, and it is governed primarily by rules of civil procedure."); State v. Laraby,
842 P.2d 1275, 1279 (Alaska App. 1992) ("[A] postconviction relief action is a civil
proceeding; as such, it is subject to the normal rules governing civil cases."); cf. Alaska
R. Crim. P. 35.1(g) (establishing "[a]ll rules and statutes applicable in civil proceedings"
are available in post-conviction relief proceedings).
The court of appeals recently applied this very proposition, stating that a
post-conviction relief action "is a civil lawsuit brought by an already-convicted criminal"
and that no authority had been offered "to support the proposition that the Sixth
Amendment right of confrontation applies to post-conviction relief litigation." Lockuk
v. State, No. 10499, 2011 WL 5027060, at *3 (Alaska App. Oct. 19, 2011).
18 Alaska R. Evid. 512(d).
19 Baxter v. Palmigiano , 425 U.S. 308, 318 (1976).
20 See, e.g., LiButti v. United States , 107 F.3d 110, 121-24 (2d Cir. 1997);
FDIC v. Fid. & Deposit Co. of Md. , 45 F.3d 969, 978 (5th Cir. 1995); RAD Servs., Inc.
v. Aetna Cas. & Sur. Co. , 808 F.2d 271, 275-76 (3d Cir. 1986).
-6- 6661
----------------------- Page 7-----------------------
to specific actions in combination with a factual dispute about those actions may give rise
to a permissible and relevant adverse inference. We agree, emphasizing that a trial
court's decision to draw an adverse inference from a non-party's invocation of the Fifth
Amendment should be made on a case-by-case basis.21
But we do agree with the court of appeals that defense counsel's general
invocation of a Fifth Amendment privilege regarding representation of an applicant does
not by itself rebut the presumption of or shift the burden of proof on counsel's
competence. The "strength and cogency of the adverse inference should, of course, be
tested against the other evidence in the case."22 Evidence of a privilege assertion void
of context bears little to no weight in satisfying a party's evidentiary burden.23
Nelson must still have presented some evidence ruling out the possibility
of a tactical reason explaining Hemby's conduct.24 Nelson offered no evidence that any
specific actions by Hemby were incompetent under the particular circumstances of his
case. And although Judge Thompson found Hemby had a good faith basis for invoking
the Fifth Amendment, Nelson failed to ask Judge Thompson to allow question-by-
21 See, e.g., LiButti , 107 F.3d at 123 (setting forth four factors for trial courts
to consider in deciding whether to permit an adverse inference to be drawn from a non-
party's invocation of the Fifth Amendment); FDIC , 45 F.3d at 978 (finding whether a
party should be barred from calling a non-party as a witness for the purpose of having
him exercise his Fifth Amendment right requires trial courts "to evaluate [such]
situations on a case-by-case basis").
22 LiButti , 107 F.3d at 124.
23 Id. ("[T]he claim of privilege will not prevent an adverse finding or even
summary judgment if the litigant does not present sufficient evidence to satisfy the usual
evidentiary burdens in the litigation." (quoting United States v. 4003-4005 5th Ave., 55
F.3d 78, 83 (2d Cir. 1995))).
24 See Jones, 759 P.2d at 569.
-7- 6661
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question examination that might have focused on specific actions and generated
permissible adverse inferences. Without any evidence of specific incompetent actions
or any corroborating adverse inferences to be drawn from Hemby's invocation of the
Fifth Amendment, Nelson failed to rebut the presumption that Hemby acted with
competence.
Accordingly, as the court of appeals suggested, Judge Thompson did not
commit error, let alone plain error.
V. CONCLUSION
With our clarification regarding defense counsel's assertion of Fifth
Amendment rights, we AFFIRM the court of appeals' decision affirming the superior
court's dismissal of Nelson's claims for post-conviction relief.
-8- 6661
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