Opinion
Court of Appeals No. A-9068.
July 26, 2006.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Richard D. Savell, Judge. Trial Court Nos. 4BE-03-0358 CI. 4be-88-0772 cr.
Rex Lamont Butler, Rex Lamont Butler Associates, Anchorage, for the Appellant.
Diane L. Wendlandt, 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 AND JUDGMENT
Joseph G. Kehlenbach was convicted of murder in the first degree in January 1990. Kehlenbach appealed his conviction to this court, and we affirmed his conviction.
Kehlenbach v. State, Alaska App. Memorandum Opinion and Judgement No. 2490 (Aug. 19, 1992), 1992 WL 12153253.
In March 1994, Kehlenbach filed his first application for post-conviction relief. That application was dismissed. In July 1996, Kehlenbach filed a second application. That application was dismissed in December 1997. In December 2003, Kehlenbach filed this application, alleging that the attorney who represented him in his first two applications had provided ineffective assistance of counsel. The State filed a motion to dismiss this application.
Superior Court Judge Richard D. Savell granted the State's motion to dismiss. In his memorandum decision, Judge Savell assumed that the acts and omissions of Kehlenbach's post-conviction relief attorney in his first two applications fell below the minimal level of competency for attorneys practicing criminal law. However, after analyzing Kehlenbach's claims point by point, Judge Savell concluded that Kehlenbach had failed to show that any of the issues he raised in his third application would have justified post-conviction relief, even if the attorney who presented his first two applications had represented him effectively. Kehlenbach now appeals that decision.
Kehlenbach alleges that the ineffective assistance of his prior post-conviction relief counsel deprived him of the opportunity to effectively argue that his counsel on direct appeal provided ineffective assistance by failing to challenge the sufficiency of the evidence at trial and to appeal the denial of his motion for judgment of acquittal. But Kehlenbach has not shown that the evidence presented at trial was insufficient to support his conviction. He therefore has not established that his appellate counsel was ineffective for failing to raise the issue or that he was prejudiced.
To succeed on his claim, Kehlenbach is required to not only plead a prima facie case of ineffective assistance as to his post-conviction attorney but also as to his appellate attorney. See Grinols v. State, 10 P.3d 600, 620 n. 73 (Alaska App. 2000) ("In the context of a `layered' claim of ineffective assistance . . . the defendant must also prove that their [appellate] attorney was incompetent."), aff'd, 74 P.3d 889 (Alaska 2003).
Kehlenbach also argues that he was prejudiced at trial because the prosecutor, Dale Curda, had acted as his defense attorney several years earlier when he was arrested for driving while intoxicated. After finding that Curda had not violated the Alaska Rules of Professional Conduct in prosecuting Kehlenbach, Judge Savell found that Kehlenbach had waived any error by not objecting at trial. He also found that Kehlenbach was barred by the statute of limitations because he did not raise this issue in his direct appeal or in a prior application for post-conviction relief. We agree with Judge Savell that Kehlenbach waived any error by failing to object at trial and that Kehlenbach's claim is barred by the statute of limitations because he did not raise it in his direct appeal.
AS 12.72.020(a)(2).
Kehlenbach claims that he was denied the right to testify on his own behalf because he was intimidated by the fact that Curda was prosecuting him. Here again, Judge Savell properly dismissed this claim on the grounds that Kehlenbach waived any such error by failing to object at trial, and because the claim was barred by the statute of limitations.
Id.
Kehlenbach argues that a juror in his case committed misconduct by failing to reveal that her husband had a continuing relationship with the state troopers. Judge Savell found that Kehlenbach was aware of the juror's husband's law enforcement connections but did not challenge her for cause or by peremptory challenge. He concluded that Kehlenbach had not shown any misconduct by the juror. Judge Savell also found that Kehlenbach had waived this issue by failing to raise it at trial or in his direct appeal. We agree with Judge Savell that Kehlenbach has not shown any misconduct on the part of the juror and that Kehlenbach waived this claim by not raising it in his direct appeal.
Id.
Kehlenbach argues that he was entitled to post-conviction relief based upon newly discovered evidence. In his decision, Judge Savell extensively analyzed Kehlenbach's claims. He concluded that Kehlenbach had not shown that the evidence was newly discovered or that the evidence met the standard for the court to grant Kehlenbach a new trial. We conclude that Judge Savell did not err in this finding.
Having reviewed the record, we find no merit to Kehlenbach's claims on appeal. In our view, the thorough decision by the superior court fully addresses and correctly resolves Kehlenbach's contentions.
The superior court's dismissal of Kehlenbach's application for post-conviction relief is AFFIRMED.