DAVID N. DAVID, Appellant,
STATE OF ALASKA, Appellee
from the Superior Court, Fourth Judicial District, Bethel,
Dale O. Curda, Judge. Trial Court No. 4BE-06-005 CI.
Martinez, Anchorage, under contract with the Public Defender
Agency, and Quinlan Steiner, Public Defender, Anchorage, for
Chleborad, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Mannheimer, Chief Judge, Allard, Judge, and Hanley, District
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.
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.
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 See David v. State, unpublished, 2005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).
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
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.
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
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.
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.
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.
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.
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.
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.
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