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remanding case where application did not include any supporting evidence or citations to the record, and the attorney’s minimal opposition to the State’s motion to dismiss was the "equivalent of filing a ‘no merit’ certificate without providing the explanations required by Griffin and Criminal Rule 35.1(e)"
Summary of this case from Amarok v. StateOpinion
No. 5832
04-18-2012
MICAH J. BESHAW, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
Court of Appeals No. A-10495
Trial Court No. 3PA-05-1160 CI
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer,
Beverly Cutler, Judge.
Appearances: Shelley K. Chaffin, Law Office of Shelley K.
Chaffin, Anchorage, for the Appellant. Tamara E. de Lucia,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and John J. Burns, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
BOLGER, Judge, dissenting.
In 2003, Micah J. Beshaw entered into a plea agreement with the State to plead no contest to first-degree sexual assault. In 2005, Beshaw filed a pro se application for post-conviction relief, raising several issues. Attorney David George was appointed to represent Beshaw. Ultimately, after Superior Court Judge Beverly Cutler gave several notices that she intended to dismiss the application for post-conviction relief for failure to state a claim, George elected to proceed on Beshaw's original ninety-five-page memorandum. Judge Cutler dismissed Beshaw's application.
On appeal, Beshaw argues that David George did not provide him with effective representation on his application for post-conviction relief. We conclude that the record in this case strongly suggests that George knew Beshaw had no meritorious claims, yet waited for the application to be dismissed in order to circumvent the procedural steps an attorney is required to take when the attorney believes that his client has no non-frivolous claims. We accordingly remand the case to the superior court with instructions to require David George to submit a detailed explanation of his representation, including a description of all the steps he took to investigate Beshaw's potential claims.
Factual and procedural background
Micah Beshaw was indicted in 2002 on five counts of first-degree sexual assault, two counts of second-degree sexual assault, and two counts of kidnapping, all of which stemmed from charges that Beshaw sexually assaulted two victims in separate incidents. In 2003, as part of a plea agreement, Beshaw pleaded no contest to one count of first-degree sexual assault. He was sentenced to twelve years of imprisonment with four years suspended. He did not appeal.
In April 2005, Beshaw filed a pro se application for post-conviction relief, and in November 2005 he filed a 95-page memorandum in support of his application, raising several issues, including ineffective assistance of counsel. The Public Defender Agency was appointed to represent Beshaw but withdrew due to a conflict of interest. In August 2006, David George, a contract attorney for the Office of Public Advocacy, took over Beshaw's representation.
Upon entering his appearance, George filed a motion for a 45-day extension of time in which to file an amended application. In December 2006, more than two months after the new deadline passed, he filed a second motion for an additional 45 days. The court gave George a new deadline of January 25, 2007. Nearly three months after this deadline, when George still had not filed anything with the court, the court issued a notice of intent to proceed with Beshaw's original application. George asked for an additional sixty days. This deadline also passed without George filing any documents with the court, and the court issued a notice of intent to dismiss Beshaw's application, giving George thirty days to respond. Thirty days later, George filed a notice that he would proceed on the grounds alleged in Beshaw's original pro se application.
On December 18, 2007, the State filed a motion to dismiss Beshaw's application, stating that he had failed to set forth factual or legal grounds upon which relief could be granted. The state noted that most of Beshaw's claims were not claims that could be brought in a post-conviction relief action and that Beshaw's claims of ineffective assistance of counsel were procedurally defective because they were not supported by affidavits of the attorneys he was claiming were ineffective.
On February 19, 2008, George filed a four-paragraph opposition to the State's motion. In his opposition, he conceded that Beshaw's post-conviction relief application made an ineffective assistance of counsel claim and attached affidavits of Rachel Levitt and Verne Rupright, Beshaw's former trial counsel, but did not otherwise respond substantively to the State's motion.
Rupright's attached affidavit did not respond to any of Beshaw's allegations. Instead, he stated that each of the allegations to which he was asked to respond were moot. Levitt, on the other hand, provided a short affidavit stating that she had worked with a staff investigator to investigate Beshaw's case and that she believed she and the investigator had followed up on information that would potentially exculpate Beshaw. She also stated that she engaged in plea negotiations with Beshaw's knowledge and consent and that Beshaw decided he did not wish to change his plea. She stated that, while the case was in the pre-trial stage, Beshaw had hired a private attorney (Rupright) to replace her.
On March 5, 2008, the State filed a second motion to dismiss, arguing that there was no valid claim of ineffective assistance of counsel with respect to Levitt because she was not his attorney at the time Beshaw changed his plea and Beshaw had alleged no facts to demonstrate how Levitt's alleged deficient representation affected his decision to change his plea. Similarly, the State argued that Beshaw had not stated a claim of ineffective assistance of counsel with respect to Rupright because the deficiencies in representation alleged by Beshaw were not linked by facts to his eventual plea.
Six months later, George filed a one-paragraph opposition to the State's second motion to dismiss, in which he made a conclusory statement that Beshaw had established a prima facie case of ineffective assistance of counsel, but again failed to respond substantively to the State's arguments. He mentioned Rachel Levitt's affidavit briefly, but stated nothing at all about Rupright or his affidavit.
On March 10, 2009, the court issued its final notice of intent to dismiss. The court explained that Beshaw had no colorable claim of ineffective assistance of counsel against Rachel Levitt because it was uncontested that no final plea or judgment was ever entered while Levitt was acting as counsel and that Beshaw did not plead facts that showed that her alleged failure to investigate prejudiced him. The court also discussed Beshaw's claims regarding Verne Rupright's representation. Beshaw claimed Rupright should have done a more probing investigation of the case and that, if he had done so, he would have had more facts that would have helped Beshaw's case. The court stated that, even assuming the facts alleged were true, it could not see how they tended to show that Rupright was ineffective with respect to Beshaw's plea agreement.
The court noted that Criminal Rule 35(d)(4) requires an application for post-conviction relief to "specifically set forth the grounds upon which the application is based," and that Beshaw had not framed with specificity how the facts asserted in his application established grounds tending to show that Rupright was ineffective. Even assuming that the facts alleged were true, Beshaw did not show how the facts asserted prejudiced him or forced him to take a plea. The judge gave Beshaw thirty additional days in which to present facts to show that Rupright was ineffective in assisting Beshaw in making a knowing, voluntary, and intelligent no contest plea as to the count to which he pleaded no contest.
George mailed a copy of the court's notice to Beshaw, but did not file a response. After Beshaw received a copy of the court's notice, he filed a motion for an extension of time to respond to the notice himself. In his supporting memorandum, he asserted that, for most of George's representation, George had refused to communicate with him, did not reply to his letters, did not take his telephone calls, and did not provide copies of any work George had performed in his case or of the State's motions to dismiss his application. He stated that he did not receive a copy of the court's final notice of intent to dismiss from George until nearly a month after it was issued and that George had not responded to Beshaw's attempts to contact him. He provided the court with a copy of the note George had included with the notice of intent he mailed to Beshaw, which stated in its entirety:
Note to Mr. Beshaw:
As you can see, the court is going to dismiss your PCR. I don't think there is much purpose in fighting it, because your trial attorneys did not support you. Sorry for the bad news.Beshaw asserted that he could provide the necessary facts to support his ineffective assistance of counsel claim and asked the court for additional time to respond. But the Clerk's office, upon receipt of Beshaw's request, notified Beshaw, George, and the State that the court could not accept Beshaw's pleading because he was represented by counsel. The court granted the State's motion to dismiss the same day.
Duties of an attorney representing an applicant in a post-conviction relief application
An attorney who is appointed to represent an indigent petitioner for post-conviction relief may choose to proceed by: (1) giving notice that he will proceed on the claims raised in the pro se application already filed by the petitioner; (2) drafting and filing an amended application containing the allegations the attorney is prepared to pursue; or (3) filing a certificate stating that the petitioner has no colorable claims for relief.
If the attorney concedes that his client has no meritorious claims, he must establish that he provided zealous representation by submitting a full description of the claims the attorney considered, the materials the attorney reviewed, the investigations the attorney has conducted, and the reasons why the attorney has concluded that all of the applicant's potential claims have no arguable merit. Whenever an attorney concludes that he cannot make a non-frivolous argument on his client's behalf, the law also places a constitutional duty on the court to independently establish, based on the information provided by the attorney, that the petitioner has no meritorious claim and that he received effective assistance of counsel. If the court agrees that the applicant has no colorable claim, the court is required to notify the applicant of its intent to dismiss the application and to give the applicant an opportunity to respond.
Alaska R. Crim. P. 35.1(e)(2)(c), (e)(3); Tazruk v. State, 67 P.3d 687, 690 (Alaska App. 2003); Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
See Alaska R. Crim. P. 35.1(f)(2); Griffin, 18 P.3d at 73 (citing Smith v. Robbins, 528 U.S. 259, 279-80 (2000)).
Alaska R. Crim. P. 35.1(f)(2); Griffin, 18 P.3d at 76.
Alternatively, if an attorney believes his client has a non-frivolous claim, he may proceed under either of the first two options. Although an attorney may choose to adopt the claims presented in a pro se litigant's previously filed application, it is the attorney's duty to make sure those claims are supported by the required relevant affidavits, documents, and references to the trial record.
See Alaska R. Crim. P. 35.1(d), (f)(1); State v. Jones, 759 P.2d 558, 566-67 (Alaska App. 1988).
Where ineffective assistance of counsel is alleged, the attorney must make sure that the application "specifically set[s] forth the grounds upon which the application is based." An application that generally alleges ineffective assistance of counsel, without providing specific facts to support the claim, does not meet this procedural requirement. This is true even where "the main points of [the defendant's] dissatisfaction [can] readily be discerned," but there remains "room for considerable uncertainty as to particulars." Additionally, when a petitioner raises claims of ineffective assistance of counsel, he must also either (1) obtain an affidavit from the trial attorney addressing the allegations of substandard performance, or (2) explain why the affidavit cannot be obtained.
Jones, 759 P.2d at 566.
Id.
See Tazruk, 67 P.3d at 689-90; Jones, 759 P.2d at 570.
An application is likewise procedurally defective if it does not separately state facts within the applicant's knowledge. Even if the facts in the application appear to be within the applicant's knowledge, these facts must nonetheless be stated separately, under oath. In addition to the applicant's sworn statement, other affidavits, documents, records, and evidence must be attached to substantiate the claims contained within the application. If this evidence is not attached, the applicant or his attorney must explain why.
See Alaska R. Crim. P. 35.1(d); Jones, 759 P.2d at 566.
Jones, 759 P.2d at 566.
Id.
In Griffin v. State, we reviewed the constitutional sufficiency of Criminal Rule 35.1(e)(2)(c), which allows an attorney appointed to represent an indigent petitioner for post-conviction relief to file a certificate stating that the attorney has determined that there are no colorable claims for relief that can be raised on behalf of the petitioner. When an attorney files a certificate under this rule, the court must independently review the record to assess whether the applicant has a colorable claim to relief. In Griffin, we concluded that, in order to adequately protect an indigent petitioner's right to effective assistance of counsel, an attorney who files a certificate of "no arguable merit" must also "provide the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous." Without such an explanation, the reviewing court is not able to "meaningfully assess and independently evaluate the attorney's assertion that the petitioner has no arguable claim to raise."
Griffin, 18 P.3d at 75-77.
Alaska R. Crim. P. 35.1(f)(2); Griffin, 18 P.3d at 76-77.
Griffin, 18 P.3d at 77.
Id.
Although the Griffin requirements generally only apply when an attorney files a "no merit" certificate with the court, the constitutional problem addressed in Griffin has also arisen in circumstances where an attorney has proceeded with the litigation after adopting his client's pro se application. Normally, an attorney who proceeds with litigation on behalf of his client is presumed to have acted competently. However, we have identified a special problem where (1) the pro se application, as written, is plainly insufficient to survive a motion to dismiss; (2) the attorney does nothing to amend the pleadings to cure the defects and does not defend the claims against a motion to dismiss; and (3) the court cannot determine from the record whether the attorney reasonably investigated the petitioner's claims. Tazruk v. State and Duncan v. State are two cases which fall into this category.
See Jones, 759 P.2d at 569.
Tazruk, 67 P.3d 687; Duncan v. State, Mem. Op. & J. No. 5407, 2008 WL 5025424 (Alaska App. Nov. 26, 2008).
In Tazruk, the petitioner filed a pro se application for post-conviction relief. After he was appointed counsel, his attorney elected to proceed on the claims raised in his client's pro se petition, even though the petition was plainly insufficient as written. After the State filed a motion to dismiss, pointing out that Tazruk's claims were either facially meritless or facially inadequate to survive a motion to dismiss, the attorney made no effort to amend or supplement Tazruk's claims and simply waited for the court to dismiss the petition. After concluding that Tazruk had failed to establish a prima facie case with respect to any of his claims, the superior court dismissed the petition. The same attorney represented Tazruk on appeal, where he conceded that the superior court's dismissal was correct.
Tazruk, 67 P.3d at 688, 689.
Id. at 690-91.
Id. at 690.
Id.
We agreed that Tazruk's petition, as written, should have been dismissed, but went on to examine whether Tazruk had received effective assistance of counsel. We pointed out that, although we usually will not review a claim of ineffective assistance of counsel for the first time on appeal, Tazruk's was an atypical case in which it appeared the attorney did not believe his client had a colorable claim and, instead of filing the appropriate certificate of "no arguable merit," engaged in the post-conviction relief equivalent of a "slow plea." We were concerned about the possibility "that when Tazruk's attorney endorsed the claims contained in Tazruk's pro se petition, he knew that these claims were all subject to dismissal, and he simply waited until the State got around to asking for judgement on the pleadings ... ."
Id.
Id. at 690-91 (explaining that a "slow plea" occurs where "a defendant charged with a crime persists in a plea of not guilty but then does nothing to defend the charge at trial — allowing the State's evidence to come in unchallenged and unrebutted, and then simply waiting for the inevitable adverse verdict").
Id. at 691.
We found that if this was the case, then either (1) Tazruk did not receive effective assistance of counsel, or (2) Tazruk's case presented the same constitutional problem we addressed in Griffin. Even if a zealous and competent attorney could not have done anything more to advance Tazruk's claims, without an actual record indicating that the attorney investigated the claims, "sought to adduce support for them through discovery," or attempted to "reformulate them so that they might survive a motion to dismiss," we were unable to perform our constitutional duty in ensuring that Tazruk received zealous and competent representation. Because we had an inadequate record upon which to assess whether Tazruk's attorney had fully investigated Tazruk's claims, we remanded the case back to the superior court with instructions that the attorney submit a detailed explanation of his representation, that the court then perform its constitutional duty of independently assessing Tazruk's claims, and that the court give Tazruk an opportunity to respond even if it found Tazruk had no colorable claims.
Id.
Id. at 691.
Id. at 691-92.
In Duncan v. State, the petitioner's attorney likewise proceeded on his client's pro se application. Unlike the attorney in Tazruk, Duncan's attorney filed an opposition to the State's motion to dismiss, but ignored the State's argument that the claims were time-barred by the statute of limitations. By ignoring the State's argument, the attorney "in effect conceded that there were no non-frivolous claims to raise" on his client's behalf. Where the claims raised in Duncan's pro se application for post-conviction relief were clearly barred and the attorney did not contest the point in his opposition to the State's motion to dismiss, the opposition was the functional "equivalent of a 'no merit' certificate — only without the explanations required by Griffin and Criminal Rule 35.1(e)(2)."
Duncan, 2008 WL 5025424, at *1.
Id. at *1-2.
Id. at *2.
Id. at *3.
As in Tazruk, we noted that we had "a constitutional duty to independently assess the merits of Duncan's case to ensure that he received zealous investigation and presentation of any colorable claims for post-conviction relief." Also as in Tazruk, we found ourselves with an inadequate "record of the materials [the attorney] reviewed, the investigation he conducted, the discovery he sought, the other potential claims he considered, or his reasons for concluding those claims were frivolous ... ." We remanded the case back to the superior court with instructions (1) that the attorney submit to the court a full explanation of all of the claims he considered and why he concluded the claims were frivolous; (2) that the petitioner be permitted to file a response; and (3) that the court then consider the merits of the claims.
Id. at *4 (citing Griffin, 18 P.3d at 76-77).
Id. at *3.
Id. at *4.
The facts of Beshaw's case are substantially similar to those in Tazruk and Duncan. Like the attorneys in those cases, David George elected to proceed on Beshaw's pro se application. But Beshaw's ninety-five-page pro se application was plainly insufficient to survive a motion to dismiss.
Beshaw's major claim was that Verne Rupright provided ineffective assistance of counsel in his investigation of the case and during plea negotiations. In order to survive a motion to dismiss, Beshaw needed to set out specific facts supporting his claim that Rupright performed below the required level of competence. Yet, not a single fact that Beshaw alleged in his application connected Beshaw's assertions of incompetent representation to his decision to enter his no contest plea. In addition, it was obvious that Beshaw's application was deficient because it did not include a sworn affidavit from Beshaw setting out the specifics of his claim. Nor did it include any supporting evidence or references to the trial record. David George did obtain an affidavit from Verne Rupright. But that affidavit did not address Beshaw's claims that Rupright provided Beshaw with ineffective assistance of counsel. It was therefore obvious that Beshaw's application was also deficient in this respect.
Id.
David George did not remedy these obvious defects in Beshaw's application for post-conviction relief. And he provided minimal opposition to the State's motions to dismiss and the superior court's notices of its intent to dismiss Beshaw's application. The record appears to show that, similarly to the records in Tazruk and Duncan, George's opposition was the equivalent of filing a "no merit" certificate without providing the explanations required by Griffin and Criminal Rule 35.1(e)(2). Because we do not have those explanations, we have no record of the materials George reviewed, the investigation he conducted, the discovery he sought, or other potential claims he considered. We therefore have no basis for meaningfully assessing whether George zealously represented Beshaw.
See Griffin, 18 P.3d at 77.
We accordingly remand the case to the superior court and direct George to "provide the court with a full explanation of all of the claims [he] has considered and why [he] has concluded that these claims are frivolous." If George provides this explanation, the superior court shall allow Beshaw to file a response and then consider the merits of the issue. Alternatively, if George concludes there are non-frivolous claims that may be raised, he may file an amended application for post-conviction relief asserting those claims.
Id. at 77; see also Alaska R. Crim. P. 35.1(e)(3)(A)-(D).
Conclusion
This case is REMANDED to the superior court for proceedings consistent with this decision. The superior court shall notify us of its findings and actions within 100 days of the issuance of this decision. We retain jurisdiction. BOLGER, Judge, dissenting.
Micah Beshaw filed a ninety-five-page brief, detailing the allegations in his application for post-conviction relief. David George adopted Beshaw's allegations and attempted to pursue them. George reviewed all of the available records, obtained affidavits from Beshaw's previous attorneys, and filed two memoranda opposing the State's motions to dismiss Beshaw's application.
George's decisions are entitled to a presumption of competence. In particular, his decision to adopt the claims stated in Beshaw's application does not necessarily establish ineffective representation.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
See Tazruk v. State, 67 P.3d 687, 691 (Alaska App. 2003).
In my opinion, George's representation is not the source of the defects in Beshaw's application. Beshaw's problem is that he pleaded no contest to a charge of sexual assault in the first degree, and there is no evidence that his plea was related to the conduct of his trial-court attorneys. Beshaw's application simply does not state a claim for relief based on ineffective assistance of counsel.
In addition, to establish that George rendered ineffective assistance of counsel while pursuing Beshaw's post-conviction application, Beshaw must establish that George's performance contributed to the outcome of the case. But this record contains no evidence that George's alleged misconduct caused this fundamental problem with Beshaw's application.
See Jones, 759 P.2d at 567-68.
To remedy this situation, the lead opinion requires George to file a written explanation about why he considers Beshaw's claims to be frivolous. But, unlike the attorney in the Tazruk case, George has never previously asserted that Beshaw's claims are frivolous; his filings have always attempted to support Beshaw's claims. In my opinion, this remedy raises a conflict of interest that will deter attorneys from pursuing potential claims in future litigation.
I would affirm the superior court's decision to dismiss Beshaw's application because it fails to state a prima facie case. If Beshaw has been prejudiced by George's alleged incompetence, then he can pursue a second application for post-conviction relief. This procedure would allow this issue to be litigated with input from both parties and decided on a proper evidentiary record.
See Grinols v. State, 74 P.3d 889, 896 (Alaska 2003).
See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
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