Opinion
Court of Appeals No. A-8966.
January 18, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-04-613 CI.
Paul T. Stavenjord, in propria persona, Florence, Arizona, for the Appellant.
John A. Scukanec, 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
A trial jury in Palmer found Paul T. Stavenjord guilty of two counts of first-degree murder for shooting Carl H. Beery and D.R. near Chulitna. On direct appeal, we rejected Stavenjord's attack on the search warrants issued during the investigation and upheld the superior court's decision to deny Stavenjord's motion to change venue; we affirmed his convictions.
AS 11.41.100(a)(1)(A).
Stavenjord v. State, 66 P.3d 762 (Alaska App. 2003).
Stavenjord filed a motion for a new trial after the jury returned the verdicts, claiming that he received ineffective assistance of counsel. The superior court eventually treated Stavenjord's motion as an application for post-conviction relief and denied relief after an evidentiary hearing. Stavenjord did not appeal the denial of this post-conviction relief application.
Stavenjord filed a second application for post-conviction relief, alleging that the superior court should have suppressed much of the evidence against him because the search warrants were unconstitutional. Superior Court Judge Eric Smith dismissed the second application on procedural grounds without conducting an evidentiary hearing. In this appeal, Stavenjord contends that the dismissal of the application was improper and also argues that he received ineffective assistance from his appellate attorneys in the direct appeal from his conviction.
We conclude that Judge Smith should have considered Stavenjord's claim that he received ineffective assistance from appellate counsel on his direct appeal. Therefore, we remand for further proceedings on that claim.
Background facts and proceedings
Troopers directed their attention to Stavenjord after discovering evidence of target practice with a .22 caliber firearm — the same caliber likely used to kill Beery and D.R. — around Stavenjord's cabin and other evidence that contradicted Stavenjord's description of his whereabouts around the time of the homicides. Alaska State Troopers Michael Brandenburger and Martin Patterson applied for search warrants to search Stavenjord's person, cabin, and vehicles, and the court issued the warrants. When they executed the warrants, the troopers seized, among other things, two .22 caliber rifles, three .22 caliber bullets from a log near Stavenjord's cabin, writings by Stavenjord, and hair and tissue samples from Stavenjord's person.
After the grand jury indicted Stavenjord, he moved to suppress the evidence seized pursuant to the search warrants. Judge Smith ruled that there was probable cause to issue the warrants because Stavenjord had lied about his whereabouts on the Friday and Saturday of the weekend the victims were killed and about owning a .22 caliber weapon. Judge Smith rejected Stavenjord's claim, based on State v. Malkin, that the search warrants were defective because the police made material misstatements or omissions in the applications for the search warrants.
722 P.2d 943 (Alaska 1986).
The case proceeded to trial, and the jury convicted Stavenjord of the two first-degree murder counts.
Following his conviction, Stavenjord filed an untimely motion for a new trial pursuant to Alaska Criminal Rule 33. Stavenjord argued that his trial attorneys were ineffective because they allowed him to testify that he shot Beery in self-defense with a J-22 pistol when they knew that this was scientifically impossible. Criminal Rule 33 requires that a motion for a new trial based on any grounds other than new evidence be filed within five days of the verdict, and Stavenjord filed his motion 234 days after the jury returned its verdict. The superior court treated the motion as an application for post-conviction relief under Alaska Criminal Rule 35.1. After an evidentiary hearing, Judge Smith denied relief on July 27, 2000. Stavenjord did not appeal this decision.
In the meantime, Stavenjord filed a direct appeal and in his Statement of Points on Appeal, claimed that the superior court erred in denying the following motions: 1) to change venue; 2) to suppress evidence due to lack of probable cause; 3) to suppress evidence based on his Malkin claim; 4) to suppress evidence seized outside of the scope of the search warrant; 5) to dismiss counts four and five of the indictment; 6) to dismiss the entire indictment; and 7) to suppress the diary the police discovered when executing the search warrants. Stavenjord also claimed that the trial court erred in denying a motion to compel and his motion for judgment of acquittal.
The attorneys who handled Stavenjord's appeal argued two of the issues from the Statement of Points on Appeal: the superior court's denial of the motion to change venue and the Malkin claim. We affirmed the superior court.
Stavenjord, 66 P.3d at 764.
Id. at 770.
Stavenjord petitioned the Alaska Supreme Court for hearing on July 25, 2003. The supreme court denied Stavenjord's petition on February 2, 2004.
On April 15, 2004, Stavenjord filed his current application for post-conviction relief. He alleged that the search warrants, which led to the discovery and seizure of much of the evidence against him, were illegal because: he had a reasonable expectation of privacy in the locations searched and the items seized; there was no probable cause to show that the items listed would be found in the location searched; the warrants did not state that the items to be searched for were at the location at the time of issuance; the warrants lacked a specific description of the items to be searched for, a more precise description of the items could have been provided; and there was no nexus between the crime, the location to be searched, and the items to be seized. Stavenjord's application did not allege ineffective assistance of counsel.
The State filed a motion to dismiss the application for post-conviction relief on September 27, 2004. The State argued that Stavenjord's application should be dismissed on several grounds: Stavenjord's application raised claims that could have been raised on direct appeal (AS 12.72.020(a)(2)); Stavenjord's application for post-conviction relief was untimely because it was filed more than a year after his appeal became final (AS 12.72.020(a)(3)(A)); Stavenjord's application was barred because it was his second application for post-conviction relief (AS 12.72.020(a)(6)); and Stavenjord's application alleged grounds that were not materially different from those decided in the direct appeal (AS 12.72.020(a)(5)).
Stavenjord opposed the motion to dismiss and claimed — for the first time — that he had received ineffective assistance of counsel on direct appeal. Stavenjord argued that he received ineffective assistance because his appellate attorney chose the issues to pursue on appeal rather than agreeing to pursue the issues Stavenjord wanted to pursue. Judge Smith dismissed Stavenjord's application for "the reasons set forth in [the] State's motion to dismiss petitioner's application for post-conviction relief[.]" This appeal followed.
Discussion
Judge Smith granted the motion to dismiss, relying on the reasons advanced by the State. One of the reasons relied on by the State was that the issues Stavenjord raised in this application were attacks on the search warrant that could have been raised on direct appeal but were not. If those were the only identifiable issues Stavenjord raised, Judge Smith correctly dismissed Stavenjord's application because Stavenjord's claims regarding the search warrant could have been litigated in the direct appeal. But none of the reasons advanced by the State in the motion to dismiss barred Stavenjord's claim that he received ineffective assistance from his appellate counsel in his direct appeal.
See AS 12.72.020(a)(2).
In Breck v. Ulmer, the Alaska Supreme Court advised Alaska judges that the pleadings of pro se litigants should be held to less stringent standards than the standards that apply to the pleadings of represented parties. The court has also stated that use of this less stringent standard is particularly appropriate when litigants' "`lack of familiarity with the rules' rather than `gross neglect or lack of good faith' underlies litigants' errors."
745 P.2d 66 (Alaska 1987).
Id. at 75; see also Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126, 129 (Alaska 2003) ("We have indicated, for example, that courts should generally hold the pleadings of pro se litigants to less stringent standards than those of lawyers.").
Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002) (quoting Wright v. Shorten, 946 P.2d 441, 444 (Alaska 1998)).
Here, resolving the State's motion to dismiss Stavenjord's application required the superior court to review the adequacy of the application on its face. In response to the State's motion, Stavenjord advanced a claim that he had received ineffective assistance from his attorney during his direct appeal.
Had Stavenjord understood and complied with the procedural requirements for amending his application, Stavenjord might have pleaded a prima facie case for relief. Admittedly, Stavenjord's unaddressed claim for relief — that he received ineffective assistance from appellate counsel — faces a difficult hurdle to overcome. The record contains a letter (not an affidavit) to Stavenjord from Stavenjord's appellate counsel that states that the choice to narrow the issues to be argued on the direct appeal was a tactical choice made by appellate counsel.
Because it was a tactical choice by appellate counsel to choose the issues to pursue on the appeal — a choice that is within the attorney's responsibility rather than a choice to be made by the client — Stavenjord would have to plead facts that demonstrate that the choice by counsel was a choice that no competent attorney would make.
See Simeon v. State, 90 P.3d 181, 183-84 (Alaska App. 2004); see also Alaska R. Prof'l Conduct 1.2(a).
See State v. Laraby, 842 P.2d 1275, 1279 (Alaska App. 1992).
We conclude that the court should have held Stavenjord's pleadings to a less stringent standard and allowed Stavenjord the opportunity to amend his application to plead ineffective assistance of counsel by his lawyer on his direct appeal. Accordingly, we reverse the superior court's dismissal and remand for further proceedings on the application consistent with this opinion.
Conclusion
The judgment of the superior court is REVERSED.
Paul Stavenjord is appealing the superior court's dismissal of his second petition for post-conviction relief. I agree with my colleagues that the superior court should not have summarily dismissed Stavenjord's petition. To explain this conclusion, I must briefly recapitulate the procedural history of Stavenjord's case.
Stavenjord was convicted of murdering two people. He was represented by private attorneys at his trial. On appeal, he was represented by the Public Defender Agency.
While Stavenjord's direct appeal of his murder convictions was pending before this Court, Stavenjord litigated his first petition for post-conviction relief. That first petition was based on allegations that he received ineffective assistance of counsel from the private attorneys who represented him at his murder trial. That petition was denied on the merits (following an evidentiary hearing) in July 2000, and Stavenjord does not contest the superior court's resolution of that petition.
Meanwhile, Stavenjord's direct appeal was still being litigated. This Court affirmed Stavenjord's convictions in March 2003. See Stavenjord v. State, 66 P.3d 762 (Alaska App. 2003). Eleven months later, in February 2004, the Alaska Supreme Court denied Stavenjord's petition for hearing ( i.e., his request that the supreme court review our decision).
Two months after the supreme court denied Stavenjord's petition for hearing, Stavenjord filed his second ( i.e., his current) petition for post-conviction relief. As originally framed, that second petition was based on claims that much of the evidence used against him at his trial was obtained in violation of the Fourth Amendment.
The State responded by asking the superior court to summarily dismiss Stavenjord's petition on four grounds: (1) that Stavenjord's Fourth Amendment claims could have been raised on direct appeal; (2) that Stavenjord's petition was untimely because it was filed more than one year after his appeal was decided; (3) that Stavenjord was barred from litigating this petition because he had already litigated an earlier petition for post-conviction relief; and (4) that the Fourth Amendment claims presented in Stavenjord's petition were not materially different from the claims that had been litigated (and rejected) in his direct appeal.
See AS 12.72.020(a)(2).
See AS 12.72.020(a)(3)(A).
See AS 12.72.020(a)(6).
See AS 12.72.020(a)(5).
(The State now acknowledges that its second ground — the alleged untimeliness of Stavenjord's petition — is meritless. As explained above, Stavenjord filed his petition only two months after the supreme court issued the order (the denial of hearing) that ended Stavenjord's direct appeal.)
In response to the State's motion for summary dismissal, Stavenjord re-formulated his claims for relief. In the amended version of his petition, Stavenjord alleged that he had received ineffective assistance of counsel from the attorneys who represented him in his direct appeal (the Public Defender Agency). Stavenjord's claim of ineffective assistance of counsel was based on the allegation that his appellate attorneys had decided, over Stavenjord's objection, not to pursue the Fourth Amendment claims outlined in the original version of Stavenjord's petition for post-conviction relief.
Thus, although Stavenjord's amended petition still relied on an underlying assertion of Fourth Amendment error, that assertion of error was now recast as a claim of ineffective assistance of counsel — a claim that any competent and zealous attorney would have pursued these Fourth Amendment arguments.
By reframing his claim for post-conviction relief as a claim of ineffective assistance of counsel, Stavenjord apparently defeated the State's procedural objections to his petition. His claim of ineffective assistance from his appellate attorneys could not have been raised on direct appeal, and that claim clearly was not litigated and decided in his direct appeal. Moreover, in Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000), affirmed 74 P.3d 889 (Alaska 2003), we held that a defendant is entitled to pursue a second petition for post-conviction relief to challenge the competence of the attorney who represented the defendant in the defendant's first petition for post-conviction relief. Our decision in Grinols strongly suggests that even though Stavenjord had litigated an earlier petition for post-conviction relief (challenging the competence of his trial attorneys), he was still entitled to challenge the competence of his appellate attorneys.
But the superior court did not acknowledge that Stavenjord, in his response to the State's motion to dismiss, had altered the legal basis of his claim for post-conviction relief. Instead, the superior court entered a one-sentence order dismissing Stavenjord's petition on the four grounds asserted by the State in its opposition to the original version of Stavenjord's claims. As I have just explained, one of those grounds (the allegation that the petition was untimely) was meritless from the beginning, and the other three grounds no longer held good, now that Stavenjord had revised his claim to an assertion of ineffective assistance of appellate counsel.
It is true that Stavenjord's claim of ineffective assistance is still procedurally deficient, in that Stavenjord has not asked his appellate attorneys to file an affidavit responding to his assertions of incompetence. Nor has Stavenjord provided the superior court with any legal authority to support his assertion that an appellate attorney in a criminal matter is obliged to follow the defendant's wishes regarding the claims to be pursued on appeal.
But Stavenjord's petition was not dismissed because of these deficiencies, and Stavenjord was never alerted that he needed to cure these deficiencies in order to survive a motion for summary dismissal. Rather, the superior court dismissed Stavenjord's petition based on the State's objections to the original version of the petition — objections that were no longer valid.
For these reasons, I join my colleagues in reversing the decision of the superior court and remanding Stavenjord's case to that court for further proceedings on his petition for post-conviction relief.
I add one further note regarding Stavenjord's right to counsel in these proceedings. Currently, Stavenjord is not represented by an attorney. Both in the superior court and in this Court, he has been litigating pro se. I suspect that Stavenjord has no lawyer because AS 18.85.100(c)(1) declares that an indigent person is not entitled to legal representation at public expense "for [the purpose] of bringing an untimely or successive application for post-conviction relief".
As explained above, even though the State originally took the position that Stavenjord's petition for post-conviction relief was time-barred, the State now concedes that his petition is timely. Thus, the sole remaining objection to providing Stavenjord with an attorney is, apparently, that his current petition is a "successive" petition.
In Grinols, 10 P.3d at 623, this Court held that the superior court has the authority (under the due process clause of the Alaska Constitution) to appoint counsel to represent an indigent defendant who is pursuing a second petition for post-conviction relief based on a claim of ineffective assistance of counsel.
There is, moreover, federal authority holding that a petition for writ of habeas corpus is not "successive" (for purposes of federal law) if it is based on claims that could not have been raised in the defendant's earlier petition. See Slack v. McDaniel, 529 U.S. 473, 486-87; 120 S.Ct. 1595, 1604-05; 146 L.Ed.2d 542 (2000) (holding that when the defendant's first federal petition was dismissed for failure to exhaust state remedies, the defendant's later petition (after he exhausted state remedies) was not a "successive" petition); In re Cabey, 429 F.3d 93, 95-99 (4th Cir. 2005) (holding that a federal habeas petition is not a "second" or "successive" petition if it raises only new issues that did not exist, and therefore could not have been raised, when the defendant's prior petition was litigated); Benchoff v. Colleran, 404 F.3d 812, 817 (3rd Cir. 2005) (same); Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (same); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003) (same); Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002) (same); Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 2001) (same); In re Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999) (same); In re Cain, 137 F.3d 234, 236 (5th Cir. 1998) (same).
When Stavenjord's case returns to the superior court, it might be proper for the superior court to consider the issue of whether counsel should be appointed to represent Stavenjord in this litigation.