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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| RUDY P. ONE, | ) |
| ) Court of Appeals No. A-8824 | |
| Appellant, | ) Trial Court No. 4BE-02-160 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2025 January 13, 2006] |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Averil Lerman, Assistant Public
Advocate, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellant. W.
H. Hawley, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Rudy P. One entered a mid-trial plea of no contest to
first-degree sexual assault. On May 3, 1996, he was convicted
based on this plea and sentenced to 30 years imprisonment.
In July 2002, One filed a pro se petition for post-
conviction relief. In this petition, One asserted that he had
been denied a jury of his peers, apparently based on the
assertion that he had been denied his right to venue in the
district where the crime occurred.
Because One was indigent, the superior court appointed
an attorney to represent him in his post-conviction relief
litigation. Ones attorney, Avraham Zorea, concluded that Ones
petition was time-barred because more than two years had passed
since the superior court entered the underlying criminal
judgement against One. See AS 12.72.020(a)(3)(A). Having
reached this conclusion, Zorea filed a certificate attesting to
his belief that One had no arguable claims for post-conviction
relief. See Alaska Criminal Rule 35.1(e)(2)(B).
Mr. Zoreas certificate reads as follows:
Counsel finds that petitioners
application is time-barred, and that his
application presents no colorable claim upon
which [the petitioner] could [obtain] relief.
Though a complete certificate [of no arguable
claims] normally requires an affidavit from
the trial attorney, in this matter, the
application is approximately four years late
in being filed. [The trial attorney] is
entitled to some measure of protection under
[the] law, and [because] counsel [has found]
the apparent time-bar issue, ... [counsel
now] files the certificate without obtaining
the [trial attorneys] affidavit. Counsel has
obtained the tapes and log notes[,] and [has]
reviewed the notes and [the] application and
[the] judgment to ensure that there was no
mistake in Mr. Ones application. It seems
clearly time-barred ... .
Superior Court Judge Dale O. Curda
reviewed Zoreas certificate and gave One a
chance to respond to it. See Alaska Criminal
Rule 35.1(f)(2). One challenged Zoreas
certificate because it did not give a
detailed explanation as to why the petitioner
has no colorable claim for relief, but One
did not specifically respond to Zoreas
assertion that the petition was time-barred.
After receiving Ones response,
Judge Curda concluded that Zorea was correct:
Ones petition for post-conviction relief was
time-barred, and thus One had no arguable
claims for post-conviction relief. Judge
Curda therefore dismissed Ones petition.
One then procured a new attorney
through the Office of Public Advocacy and
filed the present appeal. In this appeal,
One argues that Zoreas no arguable claims
certificate was deficient (as a matter of
law) because it contained no explanation of
why Zorea concluded that Ones petition was
time-barred.
We agree that if an attorney
representing an indigent petitioner for post-
conviction relief concludes that the petition
is time-barred, the attorneys no arguable
claims certificate must explain why the
attorney has concluded that the facts of the
petitioners case present no arguable
exception to the applicable statute of
limitations.
Why we conclude that Mr. Zoreas no arguable claims
certificate was legally inadequate
Under Criminal Rule 35.1(e)(2), as
interpreted by this Court in Griffin v. State, 18
P.3d 71, 75 (Alaska App. 2001), when an attorney
is appointed to represent an indigent petitioner
for post-conviction relief, the attorney has 60
days to do one of three things: (1) inform the
superior court that the attorney will proceed on
the grounds for relief already stated by the
petitioner, or (2) file an amended petition for
post-conviction relief, or (3) file a certificate
attesting that the attorney has investigated the
facts of the case and the applicable law, and that
the attorney has concluded that the petitioner has
no arguable (i.e., non-frivolous) claims for post-
conviction relief.
In Griffin, we held that, in order to protect
the petitioners right to zealous and effective legal
representation, a no arguable claims certificate filed
under Criminal Rule 35.1(e) must provide the [superior]
court with a full explanation of all the claims the
attorney has considered and why the attorney has
concluded that these claims are frivolous.1 Otherwise,
the superior court would be unable to fulfill its own
duty to meaningfully assess and independently evaluate
the attorneys assertion that the petitioner has no
arguable claim to raise.2
In the present case, Ones pro se petition for
post-conviction relief alleged a denial of his right to
a jury of his peers, apparently based on the assertion
that his trial was not held in the venue district where
the crime occurred. Mr. Zorea concluded that Ones
petition was time-barred and, thus, that there was no
point in investigating Ones underlying assertions.
We do not fault Zorea for failing to provide
the superior court with a full analysis of Ones claims.
If Ones petition was indeed time-barred, then these
claims would be moot.
But since Zoreas analysis of the petition for
post-conviction relief hinged on Zoreas conclusion that
the petition was time-barred, it was Zoreas duty to
provide the superior court with a full explanation of
why he concluded that the petition was time-barred.
This explanation would necessarily include the details
of Zoreas investigation of potential exceptions to the
limitations period.
It might seem that, by imposing this
requirement, we are requiring defense attorneys to
engage in meaningless labor. But the facts of Ones
case demonstrate the importance of a full explanation.
Under AS 12.72.020(a)(3)(A), Ones petition
had to be filed within two years of his conviction.
One was convicted in 1996, and he did not file the
present petition for post-conviction relief until 2002.
Thus, on the face of it, Ones petition was time-barred.
But the investigation conducted by Ones
current attorney shows that One filed an earlier
petition for post-conviction relief in early 1998
within the time allowed by the statute. In this 1998
petition, One claimed that he had received ineffective
assistance from his trial attorney.
Judge Curda appointed a different attorney,
Scott Sidell, to represent One in that post-conviction
relief litigation. Mr. Sidell entered an appearance
for One on February 23, 1998. But nothing further
happened. Two years later, on January 28, 2000, the
superior court notified Sidell (but apparently did not
notify One) that the petition for post-conviction
relief would be dismissed for failure to prosecute if
no action was taken within 60 days. No further action
was taken, and the superior court dismissed Ones
petition on April 15, 2000. According to the notations
on this April 15th order of dismissal, copies of the
order were sent to Sidell and the district attorneys
office. There is no indication that a copy was sent to
One himself.
In May 2002 (i.e., two years after his 1998
petition was dismissed for non-prosecution), One wrote
a letter to the Area Court Administrator for the Fourth
Judicial District, Ronald J. Wood. In his letter to
Wood, One wrote:
I have been having difficulty getting
answers on my requests for copies of my court
transcripts.
I would be grateful if you would appoint
an attorney who could help me with this
problem.
My 35.1 [petition] was back in 1996
[sic] and I never had any response back yet.
In other words, One was apparently unaware
that his petition had been dismissed two
years earlier.
We do not have a copy of any reply
that Mr. Wood may have sent to One. But on
June 17, 2002, One sent a letter to the
Bethel superior court clerk, requesting a
post-conviction relief application. One
month later, on July 17, 2002, One filed his
present petition.
In light of the foregoing, One has
at least an arguable defense to the statute
of limitations i.e., the assertion that he
received ineffective assistance of counsel
from Mr. Sidell, and that he exercised
reasonable diligence in renewing his post-
conviction relief litigation after he
discovered that Sidell had not pursued the
initial petition.3 But Mr. Zoreas no
arguable claims certificate does not discuss
any of the above circumstances.
It may be that Zorea asked One why
his petition was so late, that Zorea was
apprised of the circumstances described
above, and that Zorea then undertook an
investigation of those circumstances an
investigation which ultimately showed that
any attempt to defeat the statute of
limitations would be frivolous. But the
certificate that Zorea filed in the superior
court does not explain any of this.
Alternatively, it may be that Zorea
asked One why his petition was so late and
that, for reasons of his own, One decided not
to tell Zorea about the above circumstances
so that a reasonable attorney in Zoreas
position might not have known that there was
a potential defense to the statute of
limitations. But Zoreas certificate does not
even state that he asked One why the petition
for post-conviction relief was so late.
Finally, Zorea may have simply
compared the date of Ones current petition
(July 2002) with the date of his conviction
(early 1996) and concluded, without further
investigation, that Ones petition was time-
barred. Again, we can not know whether this
is what occurred, because the certificate
contains no explanation.
When, as in the present case, an
attorney appointed to represent an indigent
petitioner for post-conviction relief
concludes that the petition stands or falls
on the issue of whether it is barred by one
of the limitation periods codified in AS
12.72.020(a)(3), the attorney must
investigate potential defenses to the
limitation period. If, after that
investigation, the attorney concludes that
there is no colorable defense to the
limitation period, the attorneys no arguable
claims certificate must fully explain the
attorneys investigation, and the results of
that investigation, to the superior court.
Conclusion
The no arguable claims certificate filed by
Mr. Zorea in this case was inadequate; it failed
to fully explain why One had no arguable defense
to the two-year limitations period codified in AS
12.72.020(a)(3)(A). Accordingly, the superior
court should not have accepted that certificate
and should not have dismissed Ones petition for
post-conviction relief in reliance on it.
The judgement of the superior court is
REVERSED, and this case is remanded to the
superior court for further proceedings on Ones
petition for post-conviction relief.
_______________________________
1Griffin, 18 P.3d at 77.
2Id.
3Cf. Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000)
(concluding that a defendant could present a claim of
ineffective post-conviction counsel in a second post-
conviction relief application, almost four years after
final entry of judgement).
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