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           IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID N. DAVID,
                                                     Court of Appeals No. A-11252
                            Appellant,               Trial Court No. 4BE-06-005 CI

                     v.
                                                             O P I N I O N
STATE OF ALASKA,

                            Appellee.                   No. 2497 — April 29, 2016


              Appeal from the Superior Court, Fourth Judicial District,
              Bethel, Dale O. Curda, Judge.

              Appearances: Jane B. Martinez, Anchorage, under contract
              with the Public Defender Agency, and Quinlan Steiner,
              Public Defender, Anchorage, for the Appellant. Terisia
              Chleborad, Assistant Attorney General, Office of Special
              Prosecutions and Appeals, Anchorage, and Michael C.
              Geraghty, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and
              Hanley, District Court Judge. *

              Judge MANNHEIMER.



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             David N. David appeals the superior court’s dismissal of his petition for
post-conviction relief. The superior court concluded that the petition and its supporting
documents failed to state a prima facie case for relief.
             For the reasons explained in this opinion, we concur in the superior court’s
assessment that David’s petition — in the form it was presented — failed to state a prima
facie case. We therefore affirm the superior court’s judgement. However, as we explain
in this opinion, we urge judges to be vigilant and pro-active in making sure that the
attorneys who are appointed to represent defendants seeking post-conviction relief do,
in fact, provide zealous representation to those defendants.


      Underlying facts


             In 2001, David N. David was accused of first-degree sexual assault and
fourth-degree assault. He was tried two times on these charges; the first trial ended in
a hung jury, but he was found guilty at the second trial. David appealed, and this Court
affirmed his convictions and his sentence in March 2005.             See David v. State,
unpublished, 2005 WL 662691 (Alaska App. 2005).
             Several months later, David filed a pro se petition for post-conviction relief,
asserting that he had received ineffective assistance of counsel from his trial attorney.
Specifically, David alleged that his trial attorney, David Henderson, had not
communicated with him prior to trial and had refused to file pre-trial motions. David
also alleged that Henderson had failed to perform pre-trial investigation of the case,
including the testing of physical evidence. David asserted that the victim of the sexual
assault was coerced into identifying David as her assailant, and that these investigative
measures were needed to rebut the victim’s identification and establish David’s
innocence.


                                          –2–                                         2497

             In addition, David asserted that his trial attorney had been operating under
a conflict of interest. David contended that this conflict of interest arose because
Henderson represented him before and during the two trials, but then Henderson
proceeded to “abandon” him — leaving another attorney, Brian Kay, to represent David
at sentencing.
             In May 2006, the superior court appointed the Public Defender Agency to
assist David in pursuing this post-conviction relief action. Over the course of the next
three years, the Agency assigned a series of attorneys to David’s case before David’s
petition was eventually submitted in its final form.
             The first attorney assigned to David’s case was Assistant Public Defender
Joshua Fitzgerald, who worked in the Agency’s Bethel office. Between July 2006 and
May 2008, Fitzgerald asked for (and was granted) eight extensions of time for filing an
amended petition for post-conviction relief. Fitzgerald gave various reasons for these
requested extensions: not having received the court file in the underlying criminal case;
then needing more time to review the trial file and the transcript; and then needing to
acquire additional transcripts.
             In May 2008 (two years after the Agency’s appointment), Fitzgerald
notified the superior court that David’s case was being reassigned to the Anchorage
office — and he asked for a three-month extension of time so that a new attorney could
familiarize themself with the case.
             The Anchorage office initially assigned David’s case to Assistant Public
Defender Dan Lowery. At that point, David’s amended petition was due in late August
2008. Lowery asked for three extensions, totaling eight months, to file the amended
petition. Lowery told the superior court that he needed this extra time so that he could
consult an expert witness, and also because he was having difficulty communicating with
David, who was incarcerated at the Red Rock Correctional Center in Eloy, Arizona.


                                          –3–                                       2497

              In March 2009, with the amended petition due on April 21st, the Public
Defender Agency transferred Mr. Lowery to a felony trial position, and David’s post-
conviction relief case was assigned to Assistant Public Defender Lee DeGrazia. Then,
less than three weeks later, Ms. DeGrazia went on leave, and David’s case was re­
assigned to Mr. Lowery.
              Upon re-acquiring David’s case, Lowery sought another filing extension.
He told the superior court that the re-assignment of David’s case within the Agency had
delayed the copying and transmitting of court files and transcripts to the expert witness,
and thus the Agency needed additional time to secure the expert witness’s opinion in the
case.
              Finally, in June 2009 — 3½ years after David filed his original pro se
petition for post-conviction relief, and more than 3 years after the Agency’s appointment
— Lowery notified the superior court that he would not be filing an amended petition,
and that he would instead proceed on David’s pro se petition. Lowery did, however,
supplement this pro se petition with a one-page affidavit from David’s trial attorney,
David Henderson.
              In this affidavit, Henderson responded to David’s contentions that he had
failed to file pre-trial motions, and that he had failed to investigate the case. Henderson
stated that he was “not aware of any pre-trial motions that should have been filed” and
that he was likewise unaware of “[any] evidence that should have been independently
tested.” Henderson added that he had employed an investigator to investigate David’s
alibi defense, but this investigator “failed to come up with any witness who would
corroborate [David’s] alibi.”
              With respect to David’s claim that Henderson had not communicated with
him about the case, Henderson asserted that he had “communicated with Mr. David at



                                           –4–                                        2497

the jail on a number of occasions”, and that he had “conveyed the [State’s plea bargain]
offer to him” — an offer “which [David] rejected.”
              Finally, with respect to David’s claim that Henderson had a conflict of
interest, Henderson asserted that he “[was] not aware of any conflict of interest that
prohibited [him] from representing Mr. David.” Henderson explained that, by the time
of David’s sentencing, he “was no longer working for the Office of Public Advocacy”,
so “Mr. Kay handled that matter.” Henderson declared that he had had nothing to do
with David’s sentencing or his direct appeal.
              Nothing else happened in David’s case for over a year. Then, in July 2010
— thirteen months after Lowery announced that he would proceed on David’s original
pro se petition (as supplemented by Henderson’s affidavit) — the State filed a motion
to dismiss David’s petition for post-conviction relief on the ground that David had failed
to set forth a prima facie case for relief. The superior court tentatively agreed with the
State that David’s petition was legally inadequate, and the court gave Lowery an
additional 90 days to supplement the petition.
              Lowery responded to the superior court’s order by submitting an affidavit
executed by David, in which David provided a more detailed description of his claims
for post-conviction relief.
              In this affidavit, David faulted Henderson for failing to point out that there
were many other convicted sex offenders living in Bethel at the time of the sexual
assault, and that “hundreds of other suspects could have committed the assault”. David
also asserted that the victim’s identification of him as her assailant “was not anywhere
close to reliable” because the victim’s initial description of her attacker did not match
David. David contended that Henderson should have hired an expert on eyewitness
identification to attack the victim’s identification of him.



                                           –5–                                         2497


               David’s affidavit also described several potential reasons to doubt the
accuracy or the credibility of testimony given by various government witnesses at his
trial.
               In addition to this supplemental affidavit, David also submitted a separate
pro se pleading in which he made an additional assertion: that Henderson gave him
incompetent legal advice by failing to warn him that, if he pleaded guilty, this would
prejudice his ability to defend any civil lawsuit filed by the victim. (This particular
allegation was meritless on its face, because David did not plead guilty; rather, he went
to trial — twice.)
               After receiving these supplemental pleadings, the superior court again
concluded that David had failed to set forth a prima facie case for post-conviction relief.
The court acknowledged that David had identified “possible flaws in the State’s evidence
against him”. But the court noted that “[these] issues ... were all addressed in [David’s]
two trials”. In other words, David’s trial attorney was aware of these potential flaws in
the State’s case, and he pursued them.
               The superior court re-affirmed its earlier conclusion that David had failed
to provide any reason to believe that Henderson’s handling of the case was below the
minimum level of competence expected of criminal defense attorneys. And the court
therefore dismissed David’s petition.


         Why we agree with the superior court that David’s pleadings failed to set
         forth a prima facie case for post-conviction relief


               The question of whether a petition for post-conviction relief and its
supporting documents adequately set forth a prima facie case for relief is a question of
law. We therefore review the superior court’s decision on this question de novo — i.e.,



                                           –6–                                        2497

without deference to the superior court’s conclusion. See Burton v. State, 180 P.3d 964,
974 (Alaska App. 2008).
              (We acknowledge that this Court has previously issued several decisions
where we stated that the standard of review governing this question is “abuse of
discretion”. 1 Those decisions are wrong. 2 )
              David’s petition for post-conviction relief contains several claims of
ineffective assistance of counsel against his trial lawyer, Henderson. Specifically, David
contends that Henderson did not communicate with him prior to trial, that Henderson
refused or neglected to file pre-trial motions, and that Henderson did not perform a pre­
trial investigation of the case (including a failure to seek testing of physical evidence).
              But for purposes of deciding whether David’s pleadings set forth a prima
facie case that Henderson’s representation was ineffective, the superior court was not
required to accept the truth of these broad assertions unless David backed them up with
specifics. See LaBrake v. State, 152 P.3d 474, 480-81 (Alaska App. 2007), where this
Court held that when a trial court rules on the legal sufficiency of a petition for post-
conviction relief, the court need not presume the truth of “[a defendant’s] assertions
concerning the legal effect or categorization of the underlying occurrences [nor a
defendant’s] conclusory assertions concerning the ultimate facts to be decided.”




   1
      See, e.g., Cole v. State, 72 P.3d 322, 323-24 (Alaska App. 2003); Tall v. State, 25 P.3d
704, 708 (Alaska App. 2001); Jerrel v. State, 851 P.2d 1365, 1373 (Alaska App. 1993);
Brown v. State, 803 P.2d 887, 889-890 (Alaska App. 1990).
   2
       See also Hoendermis v. Advanced Physical Therapy, Inc., 251 P.3d 346, 351 (Alaska
2011), and Nielson v. Benton, 903 P.2d 1049, 1051-52 (Alaska 1995), holding that it is a
question of law whether a civil plaintiff’s case is sufficient to survive a motion for summary
judgement — and that, for this reason, the trial court’s ruling on this issue is reviewed de
novo on appeal.

                                            –7–                                         2497

              Here, David’s petition (even in its supplemented form) does not present any
specifics to support his claims of lack of communication — and Henderson’s affidavit
asserts just the opposite.
              David’s supplemented petition does identify potential flaws in the State’s
criminal case, and David asserts that Henderson failed to pursue these areas of inquiry.
But the superior court found that these weaknesses in the State’s case were explored at
David’s two trials. And as this Court said in LaBrake, “the court need not assume the
truth of assertions that are patently false or unfounded, based on the existing record or
based on the court’s own judicial notice.” Id. at 481.
              David’s petition also asserts that Henderson was incompetent for failing to
present expert testimony on the subject of eyewitness identification (to attack the
victim’s identification of David as her assailant), and for failing to obtain expert testing
of the physical evidence in the case. But David’s petition offers no specific reasons to
believe that this proposed expert testimony, or the results of this proposed expert testing,
would have helped him.
              (We note that the record of the post-conviction relief litigation — in
particular, Mr. Lowery’s request for an extension of time — suggests that Lowery
intended to consult an expert of some sort, and that Lowery was going to provide this
expert with materials from David’s case. But Lowery apparently decided not to present
any information on this issue (whatever it might have been), because Lowery did not
amend or supplement David’s petition with any offer of expert testimony.)
              David’s petition also asserts that his trial attorney was operating under a
conflict of interest. But David offers no evidence to support a finding that a conflict
existed. As we have explained, David asserted that this purported conflict arose because
Henderson, after representing him at his two trials, stopped working for the Office of
Public Advocacy — leaving another attorney, Brian Kay, to handle David’s sentencing


                                           –8–                                         2497

hearing. But David does not offer any evidence that Kay was unprepared to represent
him at sentencing, or that this change of attorneys prejudiced him in any other way, or
that this change of attorneys violated Henderson’s responsibilities to David under the
applicable rules of professional conduct.
              And finally, David’s supplemental pro se pleading asserts that Henderson
gave him incompetent legal advice by failing to warn him that, if he pleaded guilty, this
would prejudice his ability to defend any civil lawsuit filed by the victim. But as we
have already explained, this contention is meritless on its face, because David did not
plead guilty. He pleaded not guilty, and he went to trial.
              In sum, we agree with the superior court that David’s petition for post-
conviction relief did not set forth a prima facie case for relief.


       A note on the disturbing procedural history of this case


              Even though we agree with the superior court that David’s petition failed
to set forth a prima facie case for post-conviction relief, we would be remiss if we failed
to comment on the manner in which David’s litigation was handled by his attorneys.
              When an attorney is appointed to represent an indigent defendant who has
filed a pro se petition for post-conviction relief, Alaska Criminal Rule 35.1(e)(2) requires
the post-conviction relief attorney to do one of three things: (1) elect to go forward on
the petition as drafted by the client, (2) draft and file an amended petition, or (3) certify
to the superior court that the petitioner has no colorable claim for relief.
              In Griffin v. State, 18 P.3d 71 (Alaska App. 2001), this Court held that
when the attorney pursues the third course of action listed in Rule 35.1(e) — i.e.,
certifying that the defendant has no claims of any arguable merit — the attorney must
explain in detail why they reached this conclusion. Id. at 76-77.


                                            –9–                                        2497

              Our decision in Griffin was based in large measure on the need to protect
an indigent defendant’s constitutional right to counsel. Under the United States Supreme
Court’s decision in Smith v. Robbins, 3 a court must not allow a court-appointed attorney
to concede that an indigent defendant’s case has no arguable merit — i.e., to concede that
there are no colorable arguments to be made in favor of the defendant’s position —
unless the attorney has presented the court with sufficient information to allow the court
to independently determine that this is true. In Griffin, we concluded that if we did not
interpret Criminal Rule 35.1(e)(2) to require a detailed explanation from the defendant’s
post-conviction relief attorney, the superior court would not be able to comply with its
duty under Smith v. Robbins to ensure that the defendant received zealous and competent
representation. Griffin, 18 P.3d at 77.
              Two years later, in Tazruk v. State, 67 P.3d 687 (Alaska App. 2003), we
applied this same rationale in a case where the defendant’s court-appointed attorney
pursued the first course of action listed in Criminal Rule 35.1(e) — i.e., electing to go
forward on the pro se petition drafted by the defendant. The problem in Tazruk was that
all of the claims listed in the defendant’s pro se petition were either facially meritless or,
at best, facially inadequate to survive a motion to dismiss. Id. at 690.
              When the State filed a motion to dismiss the petition (on the ground that it
failed to state a prima facie case for relief), Tazruk’s attorney did not seek leave to
amend or supplement the defendant’s claims, nor did the attorney ask for more time to
investigate the claims and (potentially) adduce more evidence to support them. Instead,
Tazruk’s attorney announced that he had nothing to say in opposition to the State’s
motion to dismiss. Ibid.
              We concluded that the record in Tazruk’s case raised the same
constitutional concerns that were presented in Griffin — because it was impossible to tell

   3
       528 U.S. 259, 276-281; 120 S.Ct. 746, 759-762; 145 L.Ed.2d 756 (2000).

                                           – 10 –                                       2497


whether Tazruk’s attorney zealously and competently worked on the case. As we
explained:

                    Even if we assume that Tazruk did receive effective
             assistance — that is, even if we assume that a zealous and
             competent attorney could have done nothing more to advance
             Tazruk’s claims — the fact remains that the record contains
             no indication that Tazruk’s attorney ever investigated these
             claims, sought to adduce support for them through discovery,
             or sought to reformulate them so that they might survive a
             motion to dismiss. The record shows only the attorney’s
             inaction and ultimate concession of defeat. As was true in
             Griffin, such a record is insufficient to allow the courts to
             carry out their constitutional duty to make sure that an
             indigent petitioner receives zealous and competent
             representation.

                    We hasten to add that an attorney’s decision to adopt
             the claims stated in their client’s existing petition for
             post-conviction relief does not necessarily bespeak attorney
             inattention or neglect. ...

                    But in Tazruk’s case, there is no record that the
             attorney did anything to pursue or develop Tazruk’s claims.
             We do not know whether the attorney actually investigated
             these claims or otherwise worked to develop them; if he did,
             there is no record of it. And because of this silent record, we
             are faced with a Griffin problem. We do not know — and
             have no way of assessing — whether the attorney zealously
             represented Tazruk’s interests.

Tazruk, 67 P.3d at 691 (emphasis in the original).
             Turning to the facts of David’s case, we acknowledge that the record in
David’s case is somewhat fuller than the record in Tazruk. The pleadings in David’s
case suggest that one or more attorneys from the Public Defender Agency reviewed the

                                         – 11 –                                2497

trial file and the transcript from David’s underlying criminal case. And one of Mr.
Lowery’s motions for an extension of time suggests that he consulted (or at least
intended to consult) some kind of expert witness. And, in the end, Lowery supplied the
superior court with a supplemental affidavit from David, as well as a one-page affidavit
from David’s trial attorney — in which the trial attorney denied all of David’s assertions
of ineffective assistance.
              But even so, we confront a problem in David’s case that is analogous in
many ways to the problem we confronted in Tazruk. On their face, the claims raised in
David’s pro se petition suffered from serious deficiencies. The existing record suggests
that David’s series of attorneys demonstrated an acceptable level of competence and zeal
when they investigated David’s potential claims for post-conviction relief, but we
concede that the record also leaves a certain level of doubt on this score.
              In the end, we can not say that the superior court acted improperly when
it dismissed David’s petition for post-conviction relief on the pleadings — and we
therefore uphold the superior court’s resolution of this case. But we urge superior court
judges to be pro-active in protecting the rights of indigent defendants when, as here,
court-appointed attorneys keep shifting a defendant’s case back and forth for months or
years, with little discernible progress in the formulation or presentation of the
defendant’s claims.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                         – 12 –                                      2497


