Opinion
Court of Appeals No. A-12391 No. 6761
01-30-2019
EARL E. PICKERING JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marilyn J. Kamm, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 1KE-11-439 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: Marilyn J. Kamm, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge MANNHEIMER, writing for the Court.
Judge WOLLENBERG, concurring.
Earl E. Pickering Jr. appeals the superior court's dismissal of his petition for post-conviction relief.
In 2007, Pickering was convicted of murdering his wife (and tampering with evidence after the killing). This Court affirmed Pickering's convictions on direct appeal: Pickering v. State, unpublished, 2011 WL 488904 (Alaska App. 2011).
About three months after this Court affirmed Pickering's convictions, he filed a petition for post-conviction relief in the superior court, asserting that he received ineffective assistance of counsel both from his trial attorney and from the attorney who represented him in his appeal.
The State filed a motion asking the superior court to dismiss Pickering's petition for failure to state a prima facie case for relief. Based on the State's motion, the superior court ultimately notified Pickering's attorney that the court intended to dismiss the petition because of the attorney's failure to offer specific evidentiary support for his claims of ineffective assistance of counsel, and because of the attorney's failure to show how Pickering was prejudiced by the alleged ineffective representation.
In response to the superior court's notice, Pickering's post-conviction relief attorney supplemented the petition for post-conviction relief with a more detailed description of his claims, and by submitting an affidavit from the attorney who represented Pickering on appeal—but in her affidavit, this attorney rebutted Pickering's assertions of ineffectiveness against her.
Two weeks later, the superior court issued a final order dismissing Pickering's petition. As recited in the superior court's order, the court dismissed Pickering's application because it failed to support the claims of ineffective assistance with specific references to the trial record, or in any other manner. The superior court concluded that Pickering's claims of ineffective assistance were, in essence, simply disagreements with his attorneys' tactical decisions — and that Pickering had failed to offer any reason to believe that his attorneys' decisions were so deficient as to fall below the minimum level of competence required of criminal defense attorneys.
The superior court addressed several claims in particular. The first was Pickering's assertion that his trial attorney was incompetent for failing to call an expert witness to support Pickering's assertion that he shot his wife by accident. The superior court explained that Pickering had failed to support this claim with any indication that there was such a witness — i.e., that there was an expert who would testify that the evidence in Pickering's case proved, or was at least reasonably consistent with, Pickering's assertion that the shooting was accidental.
The next was Pickering's assertion that his trial attorney was incompetent for failing to seek a change of venue for Pickering's trial. Again, the superior court noted that Pickering had failed to offer any evidence to support a finding that his trial attorney's failure to seek a change of venue was so deficient as to be incompetent.
The third claim specifically addressed by the superior court was Pickering's assertion that the trial testimony of Ketchikan Police Officer Josh Dossett should have been excluded because it constituted "expert" testimony, and because the prosecutor failed to give advance notice that Dossett would testify as an expert. In rejecting this claim, the superior court noted that the admissibility of Dossett's testimony had already been litigated in Pickering's direct appeal — and that this Court found that Pickering had not been prejudiced by the prosecutor's failure to denote Dossett's testimony as "expert" testimony.
Finally, the superior court concluded that Pickering's claims against his appellate attorney were likewise "mere tactical complaints" about how his attorney briefed his case. The court noted that Pickering had failed to offer any factual support for his assertion that his attorney incompetently failed to brief other, more meritorious claims, or that the appeal would have been successful if the appellate attorney had handled the case differently.
Pickering now appeals the superior court's dismissal of his post-conviction relief claims.
Pickering first argues that the superior court's decision is flawed because the court applied the wrong legal test when it evaluated Pickering's petition. According to Pickering, the superior court's decision shows that the court believed that Pickering was required to prove that his trial (or his appeal) would have ended differently if his attorneys had been competent. Pickering notes that the test is whether there is a reasonable possibility that his trial (or his appeal) would have ended with a different result. See Risher v. State, 523 P.2d 422, 425 (Alaska 1974); Ferguson v. State, 242 P.3d 1042, 1054 (Alaska App. 2010).
But we do not read the superior court's decision as employing a different test. The superior court repeatedly pointed out that Pickering had failed to present any factual support for his claims of prejudice — i.e., no facts to support the conclusion that Pickering's trial or appeal would have ended differently if his attorneys had handled things differently. Given this record, the court never confronted the issue of whether Pickering's offered facts raised a likelihood of prejudice as opposed to a reasonable possibility of prejudice.
Pickering next argues that the superior court committed error by dismissing his claim concerning the admission of Officer Dossett's testimony. Pickering notes that even though this issue was raised in his direct appeal (and was decided against him), the fact that this issue was decided on appeal did not necessarily preclude Pickering from raising the issue again in a claim of ineffective assistance of counsel. See Burton v. State, 180 P.3d 964, 968-970 (Alaska App. 2008).
We agree that, even when an appellate court has found on direct appeal that a particular error was harmless, a defendant who is pursuing a petition for post-conviction relief can ask the superior court to re-assess whether the defendant was prejudiced by the error. Id. at 969-970. Thus, Pickering is correct that the superior court committed error in his case when the court declared that "it would be improper to reconsider this issue [of prejudice] in a post-conviction [relief] proceeding."
But as we noted in Burton, when a defendant asserts a claim of error in a post-conviction relief proceeding after an appeals court has found that any error was harmless (the situation presented by Pickering's case), the defendant's post-conviction relief pleadings must offer "[some] reason to doubt the appellate court's earlier conclusion that any error was harmless". Id. at 970; see also id. at 971. Here, Pickering failed to meet this requirement. We therefore uphold the superior court's ruling on this alternative basis.
Pickering also contends that the superior court committed error when it dismissed Pickering's claim that his trial attorney was ineffective for failing to call an expert witness to support Pickering's assertion that he shot his wife by accident. But as we noted earlier in this opinion, Pickering never provided the court with information to support this claim — i.e., information that there was, indeed, an expert witness who would testify that the evidence in this case supported, or was at least reasonably consistent with, Pickering's assertion that the shooting was accidental. We therefore agree with the superior court that Pickering's pleadings failed to set forth a prima facie case that he was entitled to relief on this claim.
In the latter portion of Pickering's brief to this Court, Pickering asserts a number of complaints about the performance of the attorney who represented him during the litigation of his petition for post-conviction relief in the superior court. (Pickering is now represented by another attorney.) Some of these complaints potentially raise legitimate questions about the adequacy of Pickering's legal representation in the post-conviction relief proceedings.
But just as a defendant normally cannot raise claims of ineffective assistance of counsel against their trial attorney in a direct appeal of their criminal conviction, a defendant normally cannot raise claims of ineffective assistance against their post-conviction relief attorney in an appeal of the superior court's dismissal or denial of the petition for post-conviction relief.
See Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
The underlying principle is the same in both instances: the record of a proceeding in the trial court will generally be inadequate to assess whether the attorney who litigated that proceeding did so competently or incompetently. As we explained in Burton:
[T]he record of the trial [court] proceedings will seldom conclusively establish incompetent representation, because that record will rarely provide an explanation for the attorney's conduct that is challenged as deficient. ... Claims of ineffective assistance can rarely be determined from the trial record alone [because a defense] attorney's trial decisions — including which potential defenses to pursue, whether to object to the evidence offered by the government, how to cross-examine government witnesses, and whether and how to present a defense case — generally rest on considerations of strategy and trial tactics that are not directly addressed in open court.Burton, 180 P.3d at 968-69 (internal citations omitted).
For these reasons, we reject Pickering's attacks on the competence of the attorney who represented him during the litigation of his petition for post-conviction relief in the superior court.
The judgement of the superior court is AFFIRMED. Judge WOLLENBERG, concurring.
I agree with the majority's resolution of the claims Pickering raises regarding his trial and appellate attorneys.
I write separately to address issues raised by Pickering's other claim — the claim that he received ineffective assistance of counsel from his post-conviction relief attorney. I agree with the majority that the record in this case is inadequate to establish this claim. However, Pickering rightfully points to some basic deficiencies in the pleadings that suggest that his post-conviction attorney may not have fully appreciated the burden of pleading that rests on a post-conviction relief petitioner to present a prima facie case for relief. I write separately to highlight one of these critical problems, a problem which unfortunately is not limited to this case: the failure by Pickering's post-conviction attorney to provide citations to, and supporting documentation from, Pickering's underlying criminal case.
See State v. Jones, 759 P.2d 558, 575 (Alaska App. 1988) (holding that a post-conviction relief applicant has "[t]he initial burden of making a prima facie showing as to both prongs" of the standard for ineffective assistance of counsel set out in Risher v. State, 523 P.2d 421 (Alaska 1974)); see also Alaska R. Crim. P. 35.1(d) (providing that a post-conviction relief applicant must "specifically set forth the facts and legal grounds upon which the application is based").
Both Alaska Criminal Rule 35.1(d) and long-standing Alaska case law require post-conviction relief applicants to support their applications with express references to the "portions of the record relied on" from the original criminal proceedings. This rule stems from Fajeriak v. State, where the Alaska Supreme Court rejected the notion that the post-conviction relief judge is implicitly charged with knowledge of the underlying trial record, even when that judge presided over the original criminal proceedings.
Fajeriak v. State, 520 P.2d 795, 806 (Alaska 1974); see also Jones, 759 P.2d at 556-57 (noting that a post-conviction relief application was deficient for failing to include any supporting references to the underlying criminal trial record).
Alaska Criminal Rule 35.1(d) requires a post-conviction relief applicant to attach to the post-conviction relief application "[a]ffidavits, records, or other evidence" supporting the allegations, or explain why these documents are not attached. Without this supporting documentation from the underlying criminal case, it may be impossible for the trial court to evaluate whether the petitioner has met his burden of setting forth a prima facie case for relief.
See Fajeriak, 520 P.2d at 806 (declaring that it would be "unreasonable" to expect a trial judge to recall the entire record of the earlier criminal proceeding, and that a post-conviction relief applicant must therefore provide specific citations); see also Steffensen v. State, 837 P.2d 1123, 1127 (Alaska App. 1992) (recognizing that, under Criminal Rule 35.1, it is the applicant's burden to present the court with "specific allegations to establish the factual background of [the] attorney's decision and the attorney's purported reasons for that decision").
For instance, in this case, although Pickering's post-conviction attorney alleged that Pickering's trial attorney was ineffective for failing to move to change venue and for failing to more fully question potential jurors about their alleged biases, Pickering's attorney provided no citations to the jury voir dire. And although Pickering's post-conviction attorney alleged that statements given by the State's witnesses in pretrial interviews were "sometimes wildly inconsistent, both with other witness statements and with subsequent trial testimony," and that Pickering's trial attorney was ineffective for failing to further impeach the witnesses' credibility, Pickering's post-conviction attorney did not identify which witnesses he was referring to, or what inconsistencies he was talking about, nor did he attach copies of the witnesses' statements he had apparently reviewed.
Initially, when Pickering's attorney failed to support his post-conviction relief application with any citations to Pickering's underlying criminal case, the superior court specifically notified Pickering's attorney of this defect in his pleading. The court issued a notice of intent to dismiss Pickering's application which, among other things, correctly informed Pickering's attorney that a generalized citation to the entire criminal trial record was unacceptable, and that specific citations needed to be provided. Despite this warning, Pickering's attorney failed to correct this deficiency in his subsequent amended application for post-conviction relief.
That said, the deficiencies in Pickering's pleadings were not limited to a failure of citation, and it is difficult to evaluate whether these additional deficiencies related to Pickering's representation or to the actual absence of evidence to support his claims. As a result, the appellate record alone is inadequate to assess whether Pickering was ultimately prejudiced by his post-conviction attorney's representation. I therefore concur with the court's resolution of Pickering's claim regarding his post-conviction relief attorney.
If Pickering believes he has received ineffective assistance of counsel from his post-conviction relief attorney, he may pursue this claim through a second application for post-conviction relief under Grinols v. State, 10 P.3d 600, 624 (Alaska App. 2000), and AS 12.72.025.
But I wish to remind attorneys who litigate post-conviction relief cases on behalf of criminal defendants that it is incumbent on a post-conviction relief applicant to provide the court with copies of any and all pertinent records from the underlying criminal case, accompanied by citations to the specific portions of those records that provide the factual support for the applicant's claims.