David v. State

          Appeal from the Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, Judge. Trial Court No. 4BE-06-005 CI.

         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.^[*]

          OPINION

         MANNHEIMER, Judge

         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 See David v. State, unpublished, 2005 WL 662691 (Alaska App. 2005).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.

         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.

         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 -- 3 1/2 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 ...