Opinion
Court of Appeals No. A-8894.
December 12, 2007.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney III, Judge, Trial Court Nos. 4BE-01-0317 CI 4BE-97-0012 CI 4BE-95-1287 CR.
Averil Lerman and Doug Miller, Assistant Public Advocates, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In 1996, Stanley J. Mute was convicted of one count of first-degree sexual assault and two counts of second-degree assault after raping his girlfriend, M.E., and injuring her brother, Herman E. This court upheld Mute's convictions on direct appeal. Mute also filed an application for post-conviction relief, alleging that his trial counsel, Victor D. Carlson, had provided ineffective assistance of counsel. Scott J. Sidell represented Mute in this first application for post-conviction relief. The superior court dismissed Mute's application. This court affirmed the dismissal on appeal. Mute then filed a second application for post-conviction relief, pursuant to Grinols v. State, alleging that Sidell had provided ineffective assistance of counsel when he litigated Mute's first post-conviction relief application. Superior Court Judge Leonard R. Devaney III granted the State's motion for summary judgment on Mute's second post-conviction relief application. Mute appeals.
Mute v. State, 954 P.2d 1384, 1385 (Alaska App. 1998).
Mute v. State, Alaska App. Memorandum Opinion and Judgment No. 4338 at 2 (Jan. 10, 2001), 2001 WL 21218 at *1.
10 P.3d 600 (Alaska App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003).
In order to withstand a motion to dismiss, an applicant must make out a prima facie case for post-conviction relief. In order to set out a prima facie case for relief, the application must set out facts that, if true, would entitle the applicant to the relief claimed. We conclude that Mute's second application for post-conviction relief did not set out a prima facie case for relief. We therefore uphold Judge Devaney's dismissal of Mute's application. Second petition for post-conviction relief under Grinols
Parker v. State, 779 P.2d 1245, 1247 (Alaska App. 1989).
Gyles v. State, 901 P.2d 1143, 1150 n. 9 (Alaska App. 1995) (citations omitted).
In Grinols, we held that a defendant has a due process right to collaterally attack the effectiveness of his or her post-conviction attorney in a second post-conviction application. Grinols set forth a four-step process for establishing ineffective assistance of post-conviction counsel. In order to prove that post-conviction counsel provided ineffective assistance, the "defendant must do more than prove that their post-conviction relief attorney failed to raise or competently argue a colorable legal issue." Rather, the defendant must also prove four more things:
Grinols, 10 P.3d at 618.
Id. at 619.
First, the defendant must establish their own diligence in raising the claim of ineffective representation.
. . .
Second, the defendant must establish the incompetence of their prior post-conviction relief attorney. They must prove that their attorney's failure to recognize the omitted issue, or the attorney's failure to pursue it, constituted a level of representation below the acceptable minimum of skill expected of criminal law practitioners.
. . .
Third, the defendant must establish that the omitted legal issue is, in fact, meritorious — that if the underlying issue had been litigated, the defendant would have won. When a defendant presents a "layered" claim of ineffective assistance of counsel ( i.e., when the defendant claims that their postconviction relief attorney incompetently failed to prove the incompetence of their trial attorney), this means that the defendant must prove the incompetence of both attorneys.
. . .
Fourth . . . the defendant must establish that, with this issue resolved in the defendant's favor, there is a reasonable possibility that the outcome of the defendant's original trial court proceedings would have been different. Again, the ultimate issue is the fairness of the defendant's conviction and sentence. It is not enough for the defendant to prove that the first post-conviction proceeding should have gone differently. The defendant must also prove that the flaw in the prior postconviction relief proceeding prevented the defendant from establishing a demonstrable and prejudicial flaw in the original trial court proceedings.
Id. at 619-20 (citations omitted).
In any ineffective assistance of counsel claim, there is a strong presumption in favor of the attorney's competence.
An informed decision on the issue of competence can be made only with full knowledge of the reasoning and information upon which counsel chose to act. In evaluating trial counsel's conduct, the court must apply a strong presumption of competence. An integral component of the presumption of competence is the further presumption that trial counsel's actions were motivated by sound tactical considerations. The duty of rebutting this presumption is part and parcel of the accused's burden of proof: "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" In the absence of evidence ruling out the possibility of a tactical reason to explain counsel's conduct, the presumption of competence remains unrebutted and operates to preclude a finding of ineffective assistance.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984)) (other citations omitted).
Mute first argues that Sidell was ineffective because he may have been suffering from depression when he represented Mute during his first application for postconviction relief. We take judicial notice that the Alaska Supreme Court granted a motion made by Sidell and the Alaska Bar Association to transfer Sidell to disability inactive status effective January 1, 1998, under further order of the court. But, as Judge Devaney noted, Sidell submitted Mute's application for post-conviction relief in January 1997, approximately one full year before the supreme court transferred Sidell to disability inactive status. Judge Devaney concluded that he had no basis to find that Sidell was ineffective based solely upon the supreme court's order and an affidavit from a psychologist that stated that Sidell had suffered from depression since 1996 and probably in varying degrees before that time.
Mute also presented evidence that Sidell failed to return Mute's phone calls or otherwise communicate with him. Mute argued that Sidell's failure to return his phone calls and communicate with him was a result of Sidell's depression. But Judge Devaney pointed out that, in Sidell's affidavit, Sidell explained that Mute called him numerous times during the time he represented Mute. Basically, Sidell stated that having more phone conversations with Mute would simply have resulted in having the same conversation again and again and would not have advanced Mute's case. Judge Devaney found that Sidell gave a reasonable explanation for not maintaining closer contact with Mute.
Judge Devaney's findings are supported by the record. In order to make out a prima facie case, Mute had to establish that Sidell's alleged mental illness at the time he represented Mute resulted in an error or omission in Sidell's representation of Mute that prejudiced Mute in a specific way. At least two federal courts that have looked at this issue have rejected the argument that an attorney's mental illness by itself requires a presumption of prejudice, instead holding that such ineffective assistance claims must still be analyzed under the two-part Strickland test. Therefore, we agree with Judge Devaney that, even though Mute put forth evidence that Sidell may have been clinically depressed at the time he represented Mute, Mute still had to prove (1) that counsel's conduct fell below the minimal range of competence required of an attorney with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed to his conviction. Judge Devaney did not err in rejecting Mute's argument that Sidell was ineffective as a matter of law because he may have been suffering from mental illness at the time he represented Mute.
Grinols, 10 P.3d at 619-20.
Dows v. Wood, 211 F.3d 480, 484-85 (9th Cir. 2000) (rejecting that an attorney is per se ineffective because he had been diagnosed with advanced stages of Alzheimer's disease, and instead evaluating "whether counsel's conduct was deficient . . . [and] whether it was prejudicial to the defendant" (citing Strickland, 466 U.S. at 691, 694, 104 S. Ct. 2052)); Johnson v. Norris, 207 F.3d 515, 517-18 (8th Cir. 2000) (stating that in order for a court to uphold a claim for ineffective assistance of counsel for an attorney diagnosed with bipolar disorder, a court should proceed with "the normal fact-specific Strickland analysis," that requires the court to "find that the counsel's performance was seriously deficient, and that the ineffective performance prejudiced the defense" (citing Strickland, 466 U.S. 668, 104 S. Ct. 2052)).
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
Mute also contended that Sidell was ineffective because he relied on the affidavits from Mute's trial attorney, Victor Carlson, rather than taking Carlson's deposition. Mute argues that Carlson's affidavits were incomplete and did not address all of Mute's contentions of instances where he claimed Carlson was ineffective. Judge Devaney rejected this claim, pointing out that Sidell, in his affidavit, gave a tactical reason for the failure to take Carlson's deposition. In his affidavit, Sidell stated that he was satisfied with the affidavits that he had received from Carlson because the affidavits were favorable to Mute. Sidell stated that he believed that if he took Carlson's deposition he would get answers from Carlson that were less favorable to Mute.
In Mute's appeal from the dismissal of his first application for postconviction relief, we upheld that the court's dismissal of some of Mute's claims that Carlson provided ineffective assistance of counsel because the affidavits from Carlson had not addressed Mute's claim. But, in order to set out a prima facie case that Sidell had provided ineffective assistance of counsel, Mute was required to establish that any competent counsel would have taken the deposition, and that, had the deposition been taken, there was a reasonable possibility that Carlson's answers would have had a favorable impact on the result of his case. Mute has not set forth evidence establishing either proposition. We note that, in his second application for post-conviction relief, Mute never took Carlson's deposition or presented any evidence of what Carlson might have said if he were deposed. Consequently, Mute never set out any evidence from which Judge Devaney could conclude that Sidell's prediction that taking Carlson's deposition would have resulted in evidence unfavorable to Mute was wrong.
Mute, Memorandum Opinion and Judgment No. 4338 at 5-7, 2001 WL 21218 at *2-3.
Mute's next contentions turn on the fact that, in 2001 and 2002, his alleged victim, M.E., filed affidavits in which she claimed that she consented to sex with Mute. Mute claims that, had Sidell submitted an affidavit from M.E., he would have established that Carlson was ineffective because Carlson did not call M.E. at trial. In rejecting this claim, Judge Devaney pointed out that, at Mute's trial, M.E. refused to testify. He pointed out that there was no evidence that M.E., if called as a witness at Mute's trial, would have testified consistently with the affidavit that she swore to several years after Mute's trial. Furthermore, Mute has never established that Carlson was ineffective in not having M.E. testify. As Judge Devaney pointed out, M.E. refused to testify at Mute's trial. Mute has never established that, to be effective, Carlson should have or could have forced M.E. to testify. Mute never confronted Carlson to get his version of why he did not do more to have M.E. testify. Mute has simply not established a prima facie case of ineffective assistance of counsel.
Mute argues that Sidell was ineffective because he did not depose or request an affidavit from Herman E. But again, Mute never submitted an affidavit from Herman E. Given this record, Judge Devaney properly found that Mute did not establish a prima facie case that Sidell was ineffective for failing to obtain the affidavit. Mute also argues that Sidell was ineffective because he did not obtain an affidavit from Paul Mute. But again, as Judge Devaney pointed out, Mute never provided an affidavit or even any indication of what Paul Mute would have testified about. Mute also argues that Sidell was ineffective because he did not submit an affidavit from Stanley Mute in the first postconviction relief application. But Mute has not shown that, if Sidell had submitted Mute's affidavit in the first post-conviction relief application, Mute might have prevailed in the application.
Conclusion
We conclude that Judge Devaney did not err when he found that Mute did not present a prima facie case in his second application for post-conviction relief. We accordingly uphold Judge Devaney's decision dismissing the application.