Opinion
Court of Appeals No. A-11905 No. 6432
02-15-2017
CRESS WILLIAM CARNEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3DI-11-131 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Patricia Douglass, Judge. Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Cress William Carney appeals the dismissal of his petition for post-conviction relief. For the reasons we explain here, we affirm the ruling of the superior court.
Background facts and proceedings
In November 2006, Carney confessed to murdering a passenger in his taxi and then attempting to hide the passenger's body. Carney was charged with first- and second-degree murder and tampering with physical evidence.
Prior to trial, Carney moved to suppress his confession as involuntary. In support of this motion, Carney's attorney submitted a neuropsychological evaluation completed by Dr. Richard D. Fuller. Dr. Fuller concluded that Carney had "cognitive impairments" but that he was nonetheless "capable of making reasonable decisions based on information he possesses and gathers." Carney's defense attorney did not ask Dr. Fuller to review transcripts of Carney's interview with the police, nor to provide an opinion about the voluntariness of Carney's confession.
The superior court denied Carney's motion to suppress. In its order, the court found that the officers used "some chicanery, sympathy, and psychological ploys." But the judge found that given Carney's extensive experience with the criminal justice system, Carney's will was not overborne.
The case proceeded to trial, and a jury convicted Carney of all three charges. (At sentencing, the second-degree murder conviction merged with the first-degree murder conviction.) We affirmed Carney's convictions on direct appeal.
Carney v. State, 249 P.3d 308, 313 (Alaska App. 2011).
Carney then filed a petition for post-conviction relief, arguing that his trial counsel was ineffective for failing to obtain a more comprehensive neuropsychological evaluation. Specifically, he argued that his trial counsel should have provided transcripts of his confession to Dr. Fuller or some alternative expert so that the expert could "cogently explain why Carney's ultimate statements to the police were not voluntary."
In support of this petition, Carney's post-conviction relief attorney attached an affidavit from his trial counsel, Marcelle McDannel. McDannel explained that she had chosen Dr. Fuller because she had "found him to be competent and professional" and because he was one of a few doctors willing to conduct evaluations in a jail setting. McDannel also explained that she made a tactical decision to request a limited report from Dr. Fuller because she believed that a comprehensive report "would reveal psychological problems consistent with the [criminal] behavior the State was alleging" — i.e., a diagnosis of anti-social personality disorder. Finally, McDannel believed that an objective reporting of Carney's cognitive impairments would be more persuasive to the trial judge than an expert's subjective opinion on the voluntariness of Carney's confession.
The State filed a motion to dismiss Carney's petition for post-conviction relief, arguing that he had failed to plead a prima facie case of ineffective assistance of counsel. Superior Court Judge Patricia Douglass dismissed the post-conviction relief petition. The judge found that Carney had not supported his ineffectiveness claim with any evidence that McDannel's decision to obtain a limited report was unreasonable or incompetent. She thus concluded that Carney's petition failed to state a prima facie claim for relief.
Carney now challenges the superior court's order dismissing his petition. He argues that the judge erred in concluding that McDannel was not ineffective in choosing Dr. Fuller over other experts. He also challenges the court's conclusion that McDannel made a sound tactical choice in asking Dr. Fuller to prepare a limited report that focused on Carney's objectively tested disabilities.
In similar contexts we have repeatedly explained that a "petitioner has a duty 'to allege and prove ... what would have been said by [the] potential witnesses who were not called' — in other words, a duty to produce evidence 'to show ... that [these] potential witnesses would actually have given favorable testimony.'" Here, as the judge noted in her order dismissing the petition, Carney's conclusory assertions that his trial attorney was ineffective for failing to order a different report by a different expert failed to satisfy this requirement. Carney's petition offered no basis to conclude that if Dr. Fuller or some other expert had reviewed the transcripts of Carney's interrogation and confession, that expert would have arrived at conclusions favorable to Carney's motion to suppress.
See, e.g., Allen v. State, 153 P.3d 1019, 1024 (Alaska App. 2007) (quoting State v. Jones, 759 P.2d 558, 574-75 (Alaska App. 1988)). --------
In these circumstances, we find no error in the judge's conclusion that Carney failed to state a prima facie claim of ineffectiveness. We accordingly AFFIRM the superior court's order dismissing Carney's petition for post-conviction relief.