Opinion
Court of Appeals No. A-9663.
October 24, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Neisje J. Steinkruger, Judge, Trial Court No. 4FA-04-2090 CI.
Carl Thompson, in propria persona, Seward, 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.
MEMORANDUM OPINION AND JUDGMENT
Carl Thompson appeals the superior court's dismissal of Thompson's second application for post-conviction relief. Thompson claims that his attorney in his first application for post-conviction relief provided ineffective assistance of counsel.
See Grinols v. State, 74 P.3d 889, 895, 896 (Alaska 2003) (holding that a defendant could present a claim of ineffective post-conviction counsel in a second post-conviction relief application although a second application is barred by statute).
We agree with the superior court that Thompson failed to allege a prima facie claim for relief.
A short history of Thompson's cases
A brief summary of the history of Thompson's cases is helpful. Thompson was convicted of first-degree murder for killing his ex-wife, Dixie Gutman, and convicted of tampering with physical evidence for disposing of her body. We affirmed Thompson's conviction in Thompson v. State, but we remanded for resentencing because we concluded that the superior court was clearly mistaken when it imposed the sentence on tampering with physical evidence consecutively.
768 P.2d 127 (Alaska App. 1989).
Id., at 133-34.
After the superior court amended Thompson's sentence, Thompson filed a petition for writ of habeas corpus in federal court arguing, as he had in his state appeal, that his confession had been obtained in violation of his Miranda rights. Thompson's claim was ultimately rejected by the United States District Court and the 9th Circuit Court of Appeals, and the United States Supreme Court ultimately rejected Thompson's petition for a writ of certiorari in 1999.
Thompson v. Keohane, 34 F.3d 1073 (9th Cir. 1994), vacated by 513 U.S. 1126, 115 S. Ct. 933, 130 L. Ed. 2d 879 (1995), on remand at 145 F.3d 1341 (9th Cir. 1998), cert. denied, 525 U.S. 1158, 119 S. Ct. 1066, 143 L. Ed. 2d 70 (1999).
While Thompson' s federal habeas litigation was pending, Thompson filed an application for post-conviction relief in superior court on June 7, 1996. Thompson raised three main points. First, he argued that the voluntariness of his confession should be reconsidered due to newly discovered evidence. On this issue, he relied in part on the August 1995 affidavit of Lisa Huffaker, his girlfriend at the time of the offense. Thompson claimed that Huffaker had put a dose of Mepergan in his sandwich and that drug caused him to become confused. He argued that the evidence of the tainted sandwich was newly discovered evidence which the court should reconsider on the question whether his confession was voluntary. We rejected Thompson's claim, and concluded that Judge Steinkruger properly dismissed Thompson's application because he had not met the stringent standard for granting a new trial on the basis of newly discovered evidence. We also rejected Thompson's second claim, that his counsel had been ineffective. However, we remanded the case to the superior court because we concluded that Thompson pleaded a prima facie case that he was denied his right to testify at trial.
Thompson v. State, 13 P.3d 276, 277 (Alaska App. 2000).
Id.
Id.
Id.
Id.
Id.
Id. at 277-78.
Id. at 278.
Id.
In December of 1998, Thompson filed a motion for a new trial under Alaska Criminal Rule 33. In July of 1999, Judge Steinkruger summarily dismissed the Rule 33 motion. In June of 1999, Thompson filed a motion for reduction of sentence, as well as a motion for appointment of counsel. Judge Steinkruger denied both of these motions in July of 1999. We affirmed the trial court's decisions.
Id.
In proceedings following remand from Thompson's appeal of the denial of his first application for post-conviction relief to resolve the issue on his right to testify, Thompson attempted to amend his application to include four additional claims: (1) that his attorneys had been ineffective for not preparing him to testify or explaining the advantages and disadvantages of testifying; (2) that he was deprived of his right to choose whether to go to trial or plead no contest to a lesser charge; (3) that he received ineffective assistance of counsel regarding whether he should go to trial or plead no contest to a lesser charge; and (4) that he received ineffective assistance of counsel regarding one of his attorney's understanding of Alaska's first-degree murder statute. Superior Court Judge Neisje J. Steinkruger dismissed the new claims Thompson attempted to raise, and Superior Court Judge Charles Cranston concluded that Thompson had not been denied the right to testify. We affirmed the superior court in all respects. The issues in this case
Thompson v. State, Alaska App. Memorandum Opinion and Judgment No. 4780 at 3 (Oct. 22, 2003), 2003 WL 22405385 at *1.
Id. at 4, 2003 WL 22405385 at *1.
Id. at 4, 2003 WL 22405385 at *2.
Id. at 20, 2003 WL 22405385 at *10.
Thompson filed this second application in 2004. Normally, AS 12.82.020(a)(6) bars a second application. However, in Grinols v. State, we ruled that in spite of that statutory bar, the due process clause of the Alaska Constitution permitted a defendant to pursue a second application on the grounds that the attorney representing the applicant in the first application provided ineffective assistance of counsel when litigating the first application.
10 P.3d 600 (Alaska App. 2000).
Id. at 619-20.
We held that the defendant must do more than show that his or her post-conviction relief attorney failed to raise or competently argue a colorable claim. The defendant must also prove (1) that the defendant was diligent in raising the ineffective counsel claim, (2) that the prior post-conviction relief attorney was incompetent, (3) that the underlying claim was meritorious, and (4) that there is a reasonable possibility that the outcome of the defendant's original trial court proceedings would have been different but for counsel's incompetence.
Id.
The first issue we address is the superior court's rejection of Thompson's claim that his trial attorney incompetently failed to advise Thompson of the 20-to 30-year enchmark sentencing range for second-degree murder that this court announced in Page v. State when the trial attorney told Thompson of the State's offer for Thompson to plead to second-degree murder with no agreement on a sentence. Thompson would have to plead and prove that his post-conviction relief attorney incompetently failed to raise this issue in his first application.
657 P.2d 850, 855 (Alaska App. 1983).
An applicant must rebut the presumption that trial counsel's tactical actions were competent. In Thompson's case, his trial attorney's discussion of the potential second-degree murder plea agreement without a discussion of the Page benchmark was not incompetent. The benchmark only reflects the starting point for a first felony offender who committed a typical second-degree murder. Thompson's trial attorney recognized that Thompson's case was a "bad case factually" and that, objectively, it was an atypical case. Gutman was stabbed twenty-nine times, her body was wrapped in chains and dumped in a water-filled gravel pit. At sentencing, Superior Court Judge Jay Hodges found that Thompson's conduct established a worst offense for first-degree murder. Thompson did not plead facts that rebutted the presumption that his trial attorney competently advised him of the issues involved in the second-degree murder plea offer. Therefore, his Grinols claim based on this assertion fails.
See Tall v. State, 25 P.3d 704, 708 (Alaska App. 2001).
See Page, 657 P.2d at 855.
Thompson v. State, Alaska App. Memorandum Opinion and Judgment No. 3897 at 2 (Oct. 14, 1998), 1998 WL 720481 at *1.
See Thompson, 768 P.2d 127 at 133.
Next, Thompson claims that his trial attorney incompetently failed to advise him of his right to testify at an evidentiary hearing (that never took place) regarding his claim that his statements in his prearrest interview with the police were involuntary. Thompson does not cite pertinent authority for this claim, and it appears to be an attempt to re-litigate his involuntariness claim. Thompson litigated the voluntariness of his admissions in both state and federal court. Because this claim could have been raised previously, it is barred.
See Thompson, 768 P.2d at 130-32; Thompson, 34 F.3d 1073 (9th Cir. 1994), 1994 WL 424289 at *1 (Table of Unreported Opinions).
See AS 12.72.020(a)(2), (a)(5).
Thompson also attempts to reassert an involuntariness claim regarding his admissions, this time asserting that his admissions to the troopers were in exchange for protection from the Hell's Angels. But Thompson is again attempting to relitigate his involutariness claim. In one of our previous cases regarding Thompson, we rejected his claim that he could relitigate his involuntariness claim based on purported newly discovered evidence that his girlfriend adulterated his sandwich with a drug. We held that the claim was barred by the statute of limitations on post-conviction relief applications and was also barred by res judicata or collateral estoppel. The same analysis applies to Thompson's present attempt to relitigate the voluntariness question based on his Hell's Angels claim.
See Thompson, Alaska App. Memorandum Opinion and Judgment No. 3897 at 3-5, (Oct. 14, 1998), 1998 WL 720481 at *1-2.
Id.
Thompson's brief also contains arguments that are not derived from a claim of ineffective assistance by his attorney in the litigation of the first post-conviction relief application. These claims are not permitted by the statutory bar in AS 12.72.020. Although we suggested in Grinols that the due process clause of the Alaska Constitution would require some avenue of relief "where a constitutional violation has probably resulted in the conviction of one who is actually innocent," the issues Thompson attempts to argue that are outside the scope of a claim of ineffective assistance by his first post-conviction relief attorney cannot be so categorized.
Grinols, 10 P.3d at 615.
Conclusion
The judgment of the superior court is AFFIRMED.