[Copyrighted Material Omitted]
Colleen A. Libbey, Libbey Law Offices, LLC, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Both parties appeal from rulings on Christopher Lindeman's application for post-conviction relief from his conviction for second-degree murder. The State argues that Superior Court Judge Patrick J. McKay failed to make sufficient findings to justify the conclusion that Lindeman received ineffective assistance from the attorney who handled the appeal from Lindeman's conviction. We conclude that the court made sufficient findings on this issue, and that there is a reasonable possibility that Lindeman would have prevailed on appeal if he had attacked the jury instruction on his duty to protect the victim.
Lindeman argues that his trial attorney was ineffective for his delay in obtaining DNA testing, for his incomplete response to the State's request for this jury instruction, for his failure to employ a neuropathologist, and for his conduct at the sentencing hearing. Lindeman also argues that new results from DNA testing and evidence of juror misconduct require a new trial. We agree with Judge McKay's conclusion that Lindeman failed to raise material issues requiring a hearing on these claims.
Lindeman was found calling for help in an internal stairwell outside his apartment; his
roommate, Amos Gordon Rossman, was found beaten and dead in the bathroom. Lindeman gave two statements in which he claimed innocence and alleged that he and Rossman had been on an extended drinking binge and were beaten by skinheads on the way back to Lindeman's apartment. The coroner determined that Rossman's blood alcohol level was .442%.
The trial jury convicted Lindeman of second-degree murder. Lindeman appealed his conviction and this court affirmed. In January 2002, Lindeman filed a pro se application for post-conviction relief, which was amended after he secured counsel.
In March 2007, Judge McKay granted the State's motion to dismiss the application. But the judge later granted Lindeman's motion for reconsideration of his claim regarding ineffective assistance of appellate counsel. After conducting a hearing on the claim, Judge McKay ruled that appellate counsel was ineffective and granted Lindeman a new merit appeal.
Lindeman appeals from Judge McKay's order granting the State's motion to dismiss Lindeman's remaining claims. The judge relied on considerable material outside the application for post-conviction relief when he granted the State's motion, so we will review his ruling as an order granting summary judgment. A court may grant summary judgment on an application for post-conviction relief if " there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."  We review this type of order de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party.
The State cross-appeals Judge McKay's order granting Lindeman's application on the issue of ineffective assistance of appellate counsel. On this issue, we accept the trial court's findings of fact unless they are clearly erroneous, and we review the trial court's conclusions of law de novo. 
The DNA Evidence
Performance of trial counsel
Lindeman argues that his trial counsel was ineffective for failing to obtain DNA testing of the blood evidence from the crime scene. The trial attorney did obtain favorable test results of a towel and a t-shirt just prior to trial and a favorable test result of the alleged murder weapon during trial. According to Lindeman, however, these efforts were untimely.
The State's case was largely based on blood found throughout Lindeman's apartment. Rossman was found dead in Lindeman's bathroom in a pool of blood. Blood stains were found throughout the apartment and on the alleged murder weapon, a seventeen-pound dumbbell. Blood was also found on Lindeman's t-shirt and a towel, which were in a washing machine. There were cast-off stains on the ceiling. The State argued that this evidence suggested that Lindeman struck Rossman with the dumbbell in the living room and then dragged him to the bathroom to make it look like he fell and struck his head.
Lindeman maintained his innocence throughout the investigation and trial. In two statements given to police, he alleged that he and Rossman had been beaten by skinheads on their way back to Lindeman's apartment. Lindeman alleged that he had
suffered a nosebleed in the fight. He also said that Rossman had been sitting in the recliner, but that he then assisted him to the bathroom. He later heard Rossman fall and found him lying on the floor. Lindeman stated that he (Lindeman) was blacking out after they returned to his apartment.
Lindeman's trial attorney received discovery information indicating that a detective put in a lab request for DNA testing of the evidence in October 1997. In June 1998, the trial attorney wrote to the State to inquire about the testing, but received no reply. On July 17, the prosecutor notified Lindeman's trial attorney that the State was not going to conduct blood testing. The trial attorney then decided to test some of the items most likely to contain Lindeman's blood. A few days before trial, the trial attorney received results indicating that Lindeman's own blood was on his t-shirt and a towel found in the apartment. The trial attorney then made a motion for a continuance so that he could test the dumbbell and several other items he felt should have been tested.
At the hearing on the motion for a continuance, the trial attorney argued that he would not be able to provide effective assistance if he proceeded to trial without the DNA evidence. The trial court denied his motion. But the attorney did secure and present DNA testing showing that the blood on the dumbbell was Lindeman's blood.
In his application for post-conviction relief, Lindeman argued that the trial attorney had been ineffective for failing to obtain the DNA evidence. According to Lindeman, his trial attorney failed to seek testing in a timely matter: he did not follow up on the tests ordered in October 1997 until June 1998, did not receive an answer until July 1998, and then waited an additional month before seeking testing.
In his affidavit, Lindeman's trial attorney explained that, through discovery, he received a police request for the blood testing, and that he " certainly wanted to know how the blood testing came out before trial." When prompted by a retained crime scene technician, he asked the State about the results. And when the State informed him that it would not be conducting the tests, he was left with a tactical choice: do nothing and argue the deficiency of the State's case, or do the testing. After mulling it over, he decided to approach the matter conservatively and test the two items most likely to contain Lindeman's blood. When those results confirmed that Lindeman had been an active source of bleeding, he made the motion for a continuance to test the dumbbell and other items. The trial attorney concluded that he had been ineffective for his failure to order a more timely and comprehensive DNA identification of the blood samples.
" When a defendant claims that he has been prejudiced by ineffective assistance of counsel, the defendant must show that his counsel did not perform ‘ as well as a lawyer with ordinary training and skill in ... criminal law.’ "  We apply " a strong presumption of competence" and a " presumption ...