Opinion
Court of Appeals No. A-10761 Trial Court No. 4FA-08-2088 Civ No. 5835
04-25-2012
MELVIN G. EDWIN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda Kerry, Girdwood, for the Appellant. Kenneth M. Rosenstein, 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 authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge.
Appearances: Glenda Kerry, Girdwood, for the Appellant. Kenneth M. Rosenstein, 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.
MANNHEIMER, Judge.
This is an appeal from the superior court's denial of Melvin G. Edwin's second petition for post-conviction relief. In this second petition, Edwin claims that he received ineffective assistance from the attorney who represented him in his first petition for post-conviction relief. For the reasons explained here, we agree with the superior court that Edwin failed to establish that the attorney who represented him in the first petition for post-conviction relief did so incompetently. We therefore affirm the judgement of the superior court.
Underlying facts — Edwin's trial, his first petition for post-conviction relief, and this Court's decision on appeal from the superior court's denial of Edwin's first petition
In January 1995, Melvin G. Edwin shot and killed his longtime companion, Patty Hyslop. After shooting Hyslop, Edwin attempted to commit suicide by shooting himself under the chin. Edwin lived, but he inflicted severe damage to his face and jaw.
Edwin was indicted for first-degree murder. At trial, he was represented by two attorneys from the Public Defender Agency. Because of his injuries, Edwin was unable to testify normally at his trial. Instead, he wrote out his answers to the attorneys' questions. Edwin's answers were displayed to the jury by means of an overhead projector, and these answers were also read aloud by one of Edwin's trial attorneys. At the close of the trial, the jury acquitted Edwin of first-degree murder, but found him guilty of second-degree murder.
Following Edwin's trial, but before his sentencing, Edwin was fitted with a prosthetic device — an "obturator" — that functioned as an artificial palate and that allowed him to speak intelligibly.
The superior court ultimately sentenced Edwin to serve 50 years in prison. After the superior court entered judgement against Edwin, Edwin filed a sentence appeal in which he argued that his sentence was overly severe, but Edwin did not pursue a merit appeal (i.e., an appeal attacking his conviction).
This Court affirmed Edwin's sentence in an unpublished opinion: Edwin v. State, Alaska App. Memorandum Opinion No. 3510 (November 27, 1996), 1996 WL 685765.
About four years after this Court affirmed Edwin's sentence, Edwin filed his first petition for post-conviction relief. In this first petition, Edwin claimed that he had effectively been denied his right to testify because, at the time of his trial, he was incapable of intelligible speech and was only able to testify in writing (in the manner we have already described). Edwin further claimed that his two trial attorneys represented him incompetently because they failed to ask the superior court to delay the trial until Edwin was able to speak intelligibly.
The superior court denied Edwin's petition for post-conviction relief, and Edwin appealed to this Court. See Edwin v. State, Alaska App. Memorandum Opinion No. 5226 (June 13, 2007), 2007 WL 1723408.
In our decision of that appeal, we noted that Edwin was procedurally barred from seeking post-conviction relief on the basis of his first claim — the purported denial of his right to testify — because this was a claim that Edwin could have raised on direct appeal. Nevertheless, we decided to reach the merits of this claim.
See AS 12.72.020(a)(2); Edwin, 2007 WL 1723408 at *3.
We noted that the judge who denied Edwin's petition for post-conviction relief — Superior Court Judge Richard D. Savell — was the same judge who presided over Edwin's trial. Judge Savell found that, even though Edwin testified in writing, he was able to give full and complete testimony. The judge noted that Edwin frequently wrote long and detailed answers to the attorneys' questions, and that Edwin was never rushed or forced to curtail his answers. Judge Savell further found that, when Edwin was on the stand, he succeeded in conveying his emotions to the jury through his body language, his vocalizations, and the written emphases that he included in his answers.
Edwin, 2007 WL 1723408 at *3.
Ibid.
Ibid.
Ibid.
As we summarized Judge Savell's findings in Edwin, the judge found "that Edwin testified effectively and that his demeanor, expression (both vocal and facial), and body language were apparent to the jury." Based on these findings, Judge Savell concluded that Edwin's constitutional right to testify had not been infringed.
Edwin, 2007 WL 1723408 at *4.
Ibid.
As we explained in Edwin, given Judge Savell's findings of fact, Edwin would only be entitled to relief if, as a matter of law, a criminal defendant "is denied due process [simply] because they have a speech impediment and must use nonstandard communication" when they testify. Id. at *4. We noted that Edwin had presented no authority to support this proposition. Ibid.
Given Judge Savell's finding that Edwin was able to communicate effectively with the jury through writing and non-verbal communication, and given Edwin's failure to present any authority to suggest that defendants in Edwin's situation are denied the right to testify even though they are able to communicate effectively with the jury, this Court ruled that Edwin was not denied his right to testify, even though he was brought to trial before he regained his ability to speak. Edwin, 2007 WL 1723408 at *4.
As we explained earlier, Edwin also sought post-conviction relief on the theory that his two trial attorneys were incompetent because they failed to ask Judge Savell to delay Edwin's trial until he was able to speak intelligibly.
In our decision on appeal, we noted that the record developed in the superior court showed that Edwin's trial attorneys actively analyzed the situation (i.e., Edwin's inability to speak), discussing the matter both among themselves and with other lawyers in their office. Following these discussions, the two trial attorneys concluded "that Edwin could communicate well in writing", and thus the attorneys "decided to proceed [to trial] with Edwin writing answers during his testimony." In other words, the attorneys made a conscious tactical decision to proceed to trial even though Edwin would have to give his testimony in writing.
Edwin, 2007 WL 1723408 at *5.
Ibid.
Ibid.
As we also noted in our decision, the fact that the trial attorneys made a tactical decision to proceed in this fashion meant that Edwin, to prove his claim of ineffective assistance of counsel, "was obliged to produce evidence that no reasonably competent attorney would have adopted this tactic under the circumstances." And, as we noted in our decision, Edwin failed to present any evidence on this point. Edwin therefore failed to prove his claim.
Ibid.
Ibid.
There is one other issue that is discussed in our decision in Edwin — a peripheral issue of procedure. We must discuss this issue here, because it figures in Edwin's second petition for post-conviction relief.
In Edwin, we noted that Edwin failed to present any admissible evidence that his trial attorneys even knew that Edwin's vocal apparatus could have been repaired in a relatively short time, and that therefore Edwin might be able to testify normally if Judge Savell was willing to grant a short delay of the trial. In fact, in that first post-conviction relief litigation, one of Edwin's trial attorneys submitted an affidavit stating that she had been in contact with Edwin's medical providers, and "[she] recall[ed] being advised in June of 1995 [i.e., approximately two months before Edwin's trial] that Mr. Edwin would be having no surgery or medical procedures until after his trial."
Edwin, 2007 WL 1723408 at *4.
But Edwin contended that it was his attorneys who knowingly decided to delay any medical procedures until after the trial. On this issue, Edwin offered a note written by his consulting doctor, Dr. Thomas Wells. This note indicated that Dr. Wells had spoken with at least one of Edwin's attorneys, and the note stated, "Surgeries will [be] deferred til after trial in Aug[ust]."
Ibid.
Because this note was worded in the passive voice, the note was ambiguous on the issue of who had decided that Edwin's surgeries would be deferred until after his trial. Conceivably, the note could mean that Dr. Wells, after learning the date of Edwin's trial, decided that it would be better to postpone Edwin's surgeries until after the trial. But Edwin's post-conviction relief attorney asserted that this note was, in fact, Dr. Wells's memorialization of his willingness to abide by a request from Edwin's trial attorneys to defer any surgeries until after the trial.
Ibid.
Judge Savell ruled that he did not have to hold an evidentiary hearing to resolve this issue of fact because Edwin had failed to properly place this factual issue in dispute. Judge Savell noted that Edwin's post-conviction relief attorney relied solely on the doctor's note (which was hearsay when offered on this point), and the attorney did not submit an affidavit from Dr. Wells to support her suggested interpretation of the note. The lack of an affidavit, Judge Savell ruled, was procedurally fatal to Edwin's contention that his trial attorneys made the decision. On appeal, we upheld Judge Savell's ruling on this point of procedure.
Ibid.
Ibid.
Underlying facts — Edwin's second petition for post-conviction relief
After this Court affirmed the superior court's denial of Edwin's first petition for post-conviction relief, Edwin filed a second petition for post-conviction relief in which he claimed that he received ineffective assistance from the attorney who represented him in that first post-conviction relief litigation.
See Grinols v. State (Grinols II), 74 P.3d 889 (Alaska 2003) (holding that a defendant has a constitutional right to effective representation of counsel in a first petition for post-conviction relief, id. at 894-95, and thus a defendant must be given the opportunity to pursue a second petition for post-conviction relief attacking the competence of the attorney who represented them in the first petition, id. at 896).
First, Edwin alleged that his post-conviction relief attorney was incompetent for failing to pursue the claim that Edwin's trial attorneys incompetently failed to discover that Edwin might have been physically ready to be fitted with an obturator by late August or September 1995 — meaning that Edwin might have been able to speak intelligibly at his trial if the superior court had been willing to grant a short continuance of the trial. (Edwin's trial began on August 21, 1995).
Second, Edwin alleged that his post-conviction relief attorney incompetently failed to obtain an affidavit from Dr. Wells on the question of who made the decision to delay Edwin's medical procedures until after his trial. Edwin argued that any competent attorney would have known that, if they wanted to claim that Edwin's trial attorneys made this decision, this factual claim could not rest solely on Dr. Wells's unsworn note.
And third, Edwin alleged that his post-conviction relief attorney was incompetent for pursuing the post-conviction litigation when she did not have a copy of Edwin's trial attorneys' file. Edwin argued that if his post-conviction relief attorney had examined this file, she would have learned that Edwin wanted to appeal his conviction — not just his sentence. The post-conviction relief attorney also would have learned that, on the same day that Edwin's sentence appeal was filed, one of Edwin's trial attorneys (the one who filed the sentence appeal) also filed a motion to withdraw from the case — because Edwin was already articulating claims that his two trial attorneys had represented him incompetently at trial. Based on this series of assertions, Edwin claimed that his trial attorney incompetently failed to preserve his right to pursue a merit appeal (that is, an appeal of his conviction), and that his post-conviction relief attorney was incompetent for failing to discover that his trial attorney incompetently failed to pursue a merit appeal.
The superior court dismissed Edwin's petition for failure to state a prima facie case for relief.
Why we conclude that Edwin's petition failed to state a prima facie case for post-conviction relief
Because Edwin's second petition for post-conviction relief was dismissed on the pleadings, the ultimate question presented in this appeal is whether Edwin would be entitled to relief if he succeeded in proving all of his well-pleaded assertions of fact in support of his claim for relief.
This does not mean, however, that when we assess the sufficiency of Edwin's petition, we must assume that he could ultimately prove everything asserted in his petition. The rule that a court must assume the truth of the non-moving party's assertions of fact does not apply to "statements concerning the law, or concerning mixed questions of law and fact (e.g., assertions concerning the legal effect or categorization of the underlying occurrences), nor does the presumption apply to conclusory pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details." Marshall v. State, 198 P.3d 567, 572 (Alaska App. 2008), quoting LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
Our decision in Marshall was reversed on other grounds in Marshall v. State, 238 P.3d 590 (Alaska 2010).
With these principles in mind, we turn to Edwin's three theories of why he might be entitled to post-conviction relief.
(a) Edwin's assertion that his former post-conviction relief attorney was incompetent for failing to pursue a claim that his trial attorneys should have discovered that Edwin could have been fitted with an obturator very near the time of his trial in August 1995
As we explained in our discussion of Edwin's first petition for post-conviction relief, that earlier litigation was premised on the assumption that someone — either Edwin's trial attorneys or Edwin's physician, Dr. Wells — had decided that it would be better to delay any surgeries until after Edwin's trial. But in Edwin's second petition for post-conviction relief, he claimed that his trial attorneys were incompetent for failing to understand that Edwin's palate could be repaired without surgery, by fitting and inserting an obturator into the roof of his mouth.
Edwin asserted that, even if it was reasonable to delay any surgical procedures until after his trial, this would not have precluded more immediate and less invasive steps to restore his capacity to speak intelligibly — steps that would have allowed Edwin to speak directly to the jurors, rather than presenting his testimony in writing. Edwin claimed that his trial attorneys incompetently failed to understand this, and he further claimed that he received ineffective assistance of counsel in his earlier post-conviction relief litigation because his post-conviction relief attorney incompetently failed to understand that his trial attorneys acted incompetently in this matter.
In support of this contention, Edwin relied on an affidavit from one of his trial attorneys, Colleen Kosluchar, as well as an affidavit from Dr. Wells and an affidavit from his first post-conviction relief attorney, Fleur Roberts.
In Kosluchar's affidavit, she conceded that she had not understood that Edwin's capacity for speech could be restored by steps short of surgery (specifically, by the fitting of an obturator). Instead, Kosluchar thought that it would be a long time before Edwin would be able to speak intelligibly, and she concluded that the superior court would not be willing to grant such a lengthy delay of Edwin's trial. Kosluchar faulted herself for failing to ask the doctors more questions about Edwin's prognosis and treatment options, and she declared that, had she known that Edwin's capacity for speech could be restored at or near the scheduled trial date, she would have asked the court to grant a short continuance of the trial.
In Roberts's affidavit, she declared that, after she reviewed Edwin's medical records, she realized that Edwin's speech could have been restored without surgery, by the fitting of an obturator, and she further realized that Edwin's trial attorneys had not understood this. Roberts faulted herself for failing to press the trial attorneys on this issue when she litigated Edwin's first petition for post-conviction relief.
In Dr. Wells's affidavit, he stated that he spoke to one of Edwin's trial attorneys on June 16, 1995 (approximately two months before Edwin's trial), and that he also sent Edwin's attorneys a copy of Edwin's oral surgery history. Although Dr. Wells could not recall the details of his conversation with the trial attorney, he believed that he might have told the attorney that Edwards was likely going to need surgery to repair his jaw. Dr. Wells also declared that he would have informed the trial attorney that Edwin could be fitted with an obturator by August (i.e., around the time of Edwin's scheduled trial) if she had asked.
But even if we assume that Kosluchar's failure to ask more probing questions of Dr. Wells amounted to incompetence, and even if we further assume that Roberts's later failure to attack Kosluchar for incompetence was, itself, an act of attorney incompetence, the question remains whether Edwin's petition contains sufficient allegations to establish that he suffered prejudice as a result of this cumulative incompetence.
We conclude that the answer to this question is "no", for reasons that we discussed in our decision of Edwin's earlier appeal.
As we explained in that earlier decision, Judge Savell — the judge who presided over Edwin's trial and who also handled Edwin's first petition for post-conviction relief — concluded that even though Edwin presented his testimony in writing, "Edwin testified effectively", and "his demeanor, expression (both vocal and facial), and body language were apparent to the jury."
Edwin, 2007 WL 1723408 at *4.
More specifically, Judge Savell found that, even though Edwin testified in writing, Edwin was able to give full and complete testimony. The judge noted that Edwin frequently wrote long and detailed answers to the attorneys' questions, and that Edwin was never rushed or forced to curtail his answers. Judge Savell further found that, when Edwin was on the stand, he succeeded in conveying his emotions to the jury through his body language, his vocalizations, and the written emphases that he included in his answers.
Ibid.
Id. at *3.
Ibid.
As we further explained in that earlier appeal, given Judge Savell's findings of fact, and given his ultimate conclusion that Edwin was able to communicate effectively to the jury when he gave his testimony, Edwin would only be entitled to relief if, as a matter of law, a criminal defendant "is denied due process [simply] because they ... must use nonstandard communication" when they testify. In that earlier appeal, Edwin presented no authority to support this proposition. Thus, given Judge Savell's findings that Edwin was able to communicate effectively through writing and non-verbal communication, we ruled that Edwin had not been denied his right to testify, even though he was brought to trial before he regained his capacity to speak.
Edwin, 2007 WL 1723408 at *4.
Ibid.
When Edwin litigated his second petition for post-conviction relief, his attorney attempted to rebut Judge Savell's findings by offering an affidavit in which Edwin claimed that he had not been able to communicate effectively when he gave his testimony in writing. Here are the two relevant paragraphs of Edwin's affidavit:
It was not easy to communicate by writing. I am not a good writer. I got through high school, but I was a very poor student, and got very poor grades. I was worried about
spelling and grammar when I was writing to the jury. Even a very short answer took a long time to write. By the time I wrote the first thing I had to say, I often had forgotten the rest of what I wanted to say. It took so long to write even a short answer that I tried to make all of my answers as short as I could. But that meant I could not say a lot of things I wanted to say.
I did not feel that I could truly express myself by writing notes, either to the jury or to my lawyers. There was so much I could have said if I could have spoken, but I could not do that when I had to write everything out. It was so slow, and so much harder than speaking.
Because an affidavit of this sort could have been submitted in support of Edwin's first petition for post-conviction relief, and because Edwin does not contend that his first post-conviction relief attorney (Fleur Roberts) was incompetent for failing to offer this type of affidavit during the earlier litigation, it appears that Edwin is estopped from mounting this kind of attack on Judge Savell's findings. The question of whether Edwin, because of his speech incapacity, was effectively denied his right to testify was one of the central issues in his previous post-conviction relief litigation, and in his previous appeal. Because that issue was decided against him in that earlier litigation, it appears to be res judicata.
Moreover, even if Edwin was not legally estopped from offering this affidavit, the content of the affidavit is not sufficient to enable Edwin's petition to survive a motion for judgement on the pleadings. As we noted earlier in this opinion, and as we held in LaBrake and Marshall, the rule that a court must assume the truth of the non-moving party's assertions of fact does not apply to "statements ... concerning mixed questions of law and fact (e.g., assertions concerning the legal effect or categorization of the underlying occurrences)", nor does it apply to "conclusory pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details." In the present case, Edwin's affidavit is filled with these types of assertions, and little else.
In his affidavit, Edwin asserted that it was not easy for him to communicate in writing, and that it took him a "long time" to write his answers. These assertions are essentially conclusory. Moreover, these assertions do not undercut Judge Savell's conclusion that Edwin was able to communicate effectively.
Edwin made other, seemingly more substantive assertions in his affidavit. He declared that, because it took him so long to write his answers, he tried to make his answers as short as possible — and, even then, by the time he wrote out the first thing he wanted to say in response to a question, he often forgot the rest of what he wanted to say. Edwin also declared that, because of his efforts to keep his answers short, he was not able to say many things that he wanted to say.
Edwin's assertion about having to keep all of his answers short is flatly contradicted by Judge Savell's findings in the first post-conviction relief litigation that Edwin frequently wrote long and detailed answers to the attorneys' questions, and that Edwin was never forced to curtail his answers.
Just as important, Edwin's assertions are no more than sweeping characterizations of the many individual answers he gave during his testimony, and he provides no details to back up his characterizations — no examples of answers that he was forced to abridge, and no offers of proof as to what else he would have said to the jury if his situation had been different. In other words, these portions of Edwin's affidavit amount to no more than "conclusory pro forma assertions of the ultimate facts to be proved", "[un]supported by specific details".
Because of this, Edwin's affidavit did not provide sufficient support for Edwin's petition for post-conviction relief to survive a motion for judgement on the pleadings.
If we set aside Edwin's affidavit (either because he was estopped from litigating these issues of fact, or because his affidavit was legally insufficient to create a factual dispute on these issues), what remains is the same legal issue that we confronted in Edwin's previous appeal: is a defendant necessarily deprived of the right to testify simply because they must communicate with the jury in a non-standard way, even when they are able to communicate effectively with the jury?
Just as in that earlier appeal, Edwin has again failed to present any legal authority on this question. And, as we have explained, Judge Savell found that Edwin was able to communicate effectively with the jury through writing and non-verbal communication. Based on that finding, we again conclude that Edwin was not denied his right to testify, even though he was brought to trial before he regained his ability to speak.
This means that, even if Edwin's trial attorneys were incompetent in their investigation of whether Edwin's capacity for speech might be restored by the scheduled time of his trial (or shortly after that date), and even if Edwin's first post-conviction relief attorney was incompetent for failing to pursue this issue in the previous post-conviction relief litigation, Edwin still failed to offer a prima facie case that he was prejudiced by his attorneys' shortcomings.
(b) Edwin's assertion that his former post-conviction relief attorney was incompetent for failing to obtain an affidavit from Dr. Wells to support Edwin's interpretation of the doctor's note about delaying Edwin's surgeries until after his trial
As we explained in our discussion of Edwin's first petition for post-conviction relief, a dispute arose during that earlier litigation as to whether Edwin's surgeries were delayed until after his trial because of a decision made by his doctor, or because of a decision made by his trial attorneys.
The superior court was confronted with contradictory information on this point. One of Edwin's trial attorneys submitted an affidavit stating that she had been in contact with Edwin's medical providers, and "[she] recall[ed] being advised in June of 1995 [approximately two months before Edwin's trial] that Mr. Edwin would be having no surgery or medical procedures until after his trial." But Edwin contended that it was his trial attorneys who decided to delay any surgical procedures until after the trial. Edwin offered a note written by Dr. Wells; this note indicated that Dr. Wells had spoken with at least one of Edwin's attorneys, and that "[Edwin's] [s]urgeries will [be] deferred til after trial in Aug[ust]."
Edwin, 2007 WL 1723408 at *3.
As we explained earlier, because this note was worded in the passive voice, the note was ambiguous on the issue of who had decided that Edwin's surgeries would be deferred until after his trial. Conceivably, the note could mean that Dr. Wells, after learning the date of Edwin's trial, decided that it would be better to postpone Edwin's surgeries until after the trial. But Edwin's post-conviction relief attorney asserted that this note was, in fact, Dr. Wells's memorialization of a decision made by Edwin's trial attorneys to defer any surgeries until after the trial.
As we also explained earlier, the judge presiding over that earlier post-conviction relief litigation (Judge Savell) decided that he did not have to resolve this dispute — because Edwin's post-conviction relief attorney failed to submit an affidavit from Dr. Wells (or from anyone else) to support her suggested interpretation of the note.
In Edwin's second petition for post-conviction relief, Edwin argued that his earlier post-conviction relief attorney was incompetent for not realizing that she needed an affidavit from Dr. Wells, and that she could not rely simply on the doctor's unsworn note.
It is common knowledge (or it should be common knowledge) among attorneys that, if a litigant's claim for relief is going to survive an opposing party's motion for summary disposition, the material factual assertions underlying the litigant's claim must be supported by affidavits from people who have personal knowledge of the pertinent facts.
See, e.g., Hoendermis v. Advanced Physical Therapy, Inc., 251 P.3d 346, 352 (Alaska 2011); Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991).
But if Edwin wished to prove that his former post-conviction relief attorney was incompetent for failing to submit an affidavit from Dr. Wells to support the claim that it was Edwin's trial attorneys who asked the doctor to delay Edwin's surgeries, it was crucial for Edwin to submit evidence that Dr. Wells, if asked, would indeed have submitted an affidavit saying that. Edwin submitted no such evidence.
During the second post-conviction relief litigation, Edwin no longer claimed that his trial attorneys were incompetent because they were the ones who decided to delay his surgeries until after the trial. Rather, Edwin claimed that his trial attorneys were incompetent for failing to discover that Edwin's capacity for speech could be restored without surgery, by fitting Edwin with an obturator.
Under this new theory of litigation, it was irrelevant whether there was, or was not, a justifiable need to delay Edwin's future surgical procedures until after his trial. And it was likewise irrelevant who made the decision to delay those surgeries. So, when Edwin's new post-conviction relief attorney finally did procure an affidavit from Dr. Wells (in conjunction with Edwin's second petition for post-conviction relief), the doctor's affidavit did not address the question of who asked for, or who wanted, a delay of Edwin's surgeries.
Instead, the doctor's affidavit focused on Edwin's new theory of litigation. The primary points addressed in the affidavit were (1) that Edwin's capacity for speech could have been restored as early as August 1995 by the non-surgical procedure of fitting him with an obturator, and (2) that Dr. Wells would have told this to Edwin's trial attorneys, if only they had asked.
Thus, even after the litigation of Edwin's second petition for post-conviction relief, there is still no evidence to support a finding that Dr. Wells could have submitted an affidavit to support Edwin's earlier assertion that it was his trial attorneys who asked the doctor to delay Edwin's surgeries until after the trial. This lack of evidence is fatal to Edwin's claim that his former post-conviction relief attorney was incompetent for failing to obtain a supporting affidavit from Dr. Wells.
(c) Edwin's assertion that his former post-conviction relief attorney was incompetent for failing to obtain a copy of the trial attorneys' file — which, according to Edwin, would have shown that Edwin's trial attorneys had a conflict of interest
Edwin also contends that his earlier post-conviction relief attorney incompetently failed to investigate and pursue the theory that Edwin's trial attorneys wrongfully deprived him of his right to appeal his murder conviction.
As we explained earlier in this opinion, after Edwin was sentenced for murder, he filed an appeal of his sentence but he did not file a merit appeal attacking his underlying conviction. In his second petition for post-conviction relief, Edwin relied on the fact that, by the time his deadline came for filing an appeal (30 days following the distribution of the judgement), Edwin had already raised claims of ineffective assistance of counsel against his trial attorneys. Edwin argued that his claims of ineffective assistance created a conflict of interest between himself and the trial attorneys, and that his attorneys' decision to file only a sentence appeal was tainted by this conflict of interest. Edwin claimed that he told his attorneys that he wished to pursue a merit appeal, but (because of the conflict of interest) his attorneys filed only a sentence appeal, disregarding Edwin's express desire to appeal his conviction as well.
To establish a valid claim for post-conviction relief in a second post-conviction relief proceeding, not only did Edwin have to prove that he received ineffective assistance from his trial attorneys, but he also had to prove (1) that he acted diligently in pursuing this claim, and (2) that his former post-conviction relief attorney was incompetent for failing to pursue this claim. As we explained in Grinols v. State (Grinols I), 10 P.3d 600 (Alaska App. 2000):
First, the defendant must establish their own diligence in raising the claim of ineffective representation. A defendant can not "sit on" a claim of ineffective assistance of counsel. The defendant must show "that the facts upon which the defendant relies were not known to the defendant and could not in the exercise of due diligence have been discovered by him ... substantially earlier than the time of his second petition."Grinols I, 10 P.3d at 619.
. . .
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.
Affirmed (on this point) in Grinols II, 74 P.3d 889, 895 (Alaska 2003).
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In his second petition for post-conviction relief, Edwin claimed that his former post-conviction relief attorney was incompetent because she failed to obtain a complete copy of his trial attorneys' file. Edwin asserted that if his former attorney had obtained this file, the attorney would have seen that the file contained documents proving (1) that he wanted to pursue a merit appeal, not just a sentence appeal, and (2) that he had already raised claims of ineffective assistance against his trial attorneys by the time his deadline for filing an appeal arrived. Thus, Edwin concludes, his former post-conviction relief attorney would have seen that the competency of his trial attorneys could be attacked on this basis (i.e., on the basis that they filed only a sentence appeal, and not a merit appeal).
But even construing all of the facts in the light most favorable to Edwin, Edwin failed to meet the "diligence" requirement set forth in Grinols I. That is, Edwin's second petition for post-conviction relief failed to set forth a prima facie case that "the facts upon which he relied were not known to [him] and could not in the exercise of due diligence have been discovered by him ... substantially earlier than the time of his second petition."
Even though Edwin may not have known the precise contents of his trial attorneys' file when he litigated his first petition for post-conviction relief, Edwin personally knew that he had asked his trial attorneys to file a merit appeal, and he personally knew that he had leveled claims of ineffective assistance of counsel against his trial attorneys before the appeal was filed. And even if we assume that Edwin did not immediately know that his attorneys filed only a sentence appeal, he must surely have become aware of this fact by the time this Court affirmed his sentence, before he initiated his first petition for post-conviction relief.
In other words, all the facts underlying Edwin's claim were known to him at the time of the first post-conviction relief litigation. The documents in his trial attorneys' file may have provided additional support for these assertions of fact, but Edwin's claim was known to him, and could have been pursued, without those documents. This is not a situation where examination of the trial attorneys' file revealed an instance of attorney incompetence that otherwise would have remained undiscovered.
Edwin's claim also fails for a second reason: he did not set forth a prima facie case that he was prejudiced by his trial attorneys' decision to file only a sentence appeal.
In situations like Edwin's case, where a criminal defendant challenges the competence of their trial attorney following their conviction, the trial attorney will generally seek to withdraw from the case, but the attorney is under a duty to withdraw in a manner that does not prejudice the defendant's right of appeal. Alaska Professional Conduct Rule 1.16(d) declares that, "[u]pon termination of [the] representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests ... ." And Alaska Appellate Rule 209(b)(4) states that when an attorney is appointed to represent a defendant in a criminal proceeding, "[i]f an appeal is to be taken, trial counsel will not be permitted to withdraw until the notice of appeal and the documents required to be filed with the appeal by [Appellate] Rule 204 have been accepted for filing by the clerk of the appellate courts."
In Edwin's case, his trial attorneys complied with this duty by filing Edwin's sentence appeal and then moving to withdraw. Because of his trial attorneys' actions, Edwin met the deadline for appealing the superior court's judgement, and he received a substitute attorney. Even if we assume that Edwin's trial attorneys should have heeded Edwin's wishes and attacked both his sentence and his conviction when they filed the notice of appeal, Edwin soon had a new attorney who had no conflict of interest, and this new attorney could have supplemented the points on appeal to include one or more attacks on Edwin's conviction. Thus, Edwin failed to present a prima facie case that he was prejudiced by his trial attorneys' actions.
For both of these reasons — Edwin's lack of diligence, and the fact that he failed to offer a prima facie case of prejudice — the superior court could properly dismiss Edwin's claim that his earlier post-conviction relief attorney failed to adequately investigate the theory that Edwin's trial attorneys wrongfully deprived him of his right to appeal his murder conviction.
Conclusion
For the reasons explained in this opinion, the judgement of the superior court is AFFIRMED.