Opinion
Court of Appeals No. A-9348.
November 15, 2006.
Trial Court No. 3HO-05-020 Civ.
Randall S. Cavanaugh, Kalamarides Lambert, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
The superior court entered judgement against Petro Basargin for first-degree sexual assault on April 15, 2002. Basargin filed a notice of appeal, but his appeal was dismissed for want of prosecution on December 27, 2002.
On January 27, 2005 — that is, more than 2½ years after the superior court's entry of judgement, and two years after this Court's dismissal of Basargin's appeal — Basargin filed a petition for post-conviction relief. The superior court ultimately dismissed Basargin's petition as time-barred under AS 12.72.020(a)(3)(A). This statute provides that, with certain exceptions not pertinent to this case, a defendant must file a petition for post-conviction relief within two years of the underlying judgement if that judgement was not appealed, or within one year of the final appellate order in the case if the judgement was appealed.
Basargin now appeals the superior court's dismissal of his petition for post-conviction relief.
Basargin acknowledges that his petition was filed outside the time limits of AS 12.72.020(a)(3)(A). However, Basargin asserts that he should be exempted from that statute of limitations because (1) his father hired an attorney to investigate the possibility of a petition for post-conviction relief (at a time when a petition would have been timely), and (2) this attorney failed to tell Basargin or his father about the time limit for filing the petition.
When Basargin presented this argument to the superior court, he relied on the United States Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
In Flores-Ortega, the Supreme Court noted that a defense attorney renders ineffective assistance if the attorney fails to file an appeal after being expressly instructed by the defendant to do so. Id., 528 U.S. at 477, 120 S.Ct. at 1035. The question presented in Flores-Ortega, however, was whether a defense attorney renders ineffective assistance of counsel if the attorney fails to file an appeal when the defendant "has not clearly conveyed his wishes one way or the other". Id. The Supreme Court held that ineffective assistance would be established if the defendant could show (1) that the attorney unreasonably failed to consult with the defendant about the possibility of an appeal, and (2) that, but for the defense attorney's deficient failure to consult with the defendant about an appeal, the defendant would have filed a timely appeal. Id., 528 U.S. at 484, 120 S.Ct. at 1038.
Citing Rodríquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).
Basargin argued that a similar rule should apply when an attorney is hired to investigate the possibility of a petition for post-conviction relief.
Superior Court Judge Harold M. Brown agreed that Basargin would have a colorable ground for relaxing the statute of limitations if Basargin could show that his attorney had given him ineffective assistance under the Flores-Ortega test. However, Judge Brown concluded that Basargin had failed to present a prima facie case of ineffective assistance under Flores-Ortega.
Although Basargin alleged that his attorney failed to inform him of the deadline for filing a petition for post-conviction relief, Judge Brown noted that Basargin had failed to allege either (1) that he expressly directed his attorney to file a petition for post-conviction relief, or (2) that his attorney unreasonably failed to consult with him about the possibility of filing a petition for post-conviction relief. This being so, Judge Brown concluded that Basargin had not met his obligation of presenting evidence on each essential element of his claim. Accordingly, Judge Brown announced that he intended to dismiss Basargin's petition as time-barred.
Nevertheless, Judge Brown explicitly offered to reconsider his decision if Basargin could present any authority to support the contention that his attorney's failure to inform Basargin about the statute of limitations, standing alone, was a breach of the attorney's duty to Basargin. In his written order, Judge Brown "invit[ed] [Basargin] to file authority . . . from any jurisdiction [to] support the propositions that . . . [an attorney] employed to evaluate `appropriate post-conviction relief' . . . has the obligation to advise [the defendant] on the time limitation for the filing of post-conviction relief."
Judge Brown gave Basargin three weeks to file any such authority. Basargin filed nothing, so Judge Brown's earlier order became final.
On this record, we affirm Judge Brown's ruling. However, we wish to emphasize the limited basis of that ruling.
Basargin did not assert that his attorney failed to advise him about the possibility of filing a petition for post-conviction relief, nor did Basargin assert that his attorney's advice on this matter was incompetent or unreasonably deficient in any way, apart from the attorney's failure to expressly mention the time limit for filing a petition. As a consequence, Basargin's pleadings failed to satisfy the test that he, himself, proposed as governing his case: the Flores-Ortega test.
As explained above, Flores-Ortega holds that ineffective assistance of counsel is established if a defendant can show (1) that the defendant's attorney unreasonably failed to consult with the defendant about the possibility of an appeal, and (2) that, but for the defense attorney's deficient failure to consult with the defendant about an appeal, the defendant would have filed a timely appeal. Id., 528 U.S. at 484, 120 S.Ct. at 1038.
Basargin failed to assert that his attorney gave him incompetent advice concerning the potential merits of a petition for post-conviction relief, and he further failed to assert that he would have filed a timely petition (or at least would have timely requested his attorney to file a petition) if his attorney's advice on the potential merits of a petition had been competent.
For this reason, even if the statute of limitations should be relaxed in cases where attorney incompetence has caused a defendant to miss the filing deadline, Basargin failed to present a prima facie case of attorney incompetence, and we accordingly uphold Judge Brown's ruling that Basargin's petition was time-barred.
The judgement of the superior court is AFFIRMED.