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Holden v. State (12/7/2007) ap-2129

Holden v. State (12/7/2007) ap-2129

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
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             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us
          
         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ERIC HOLDEN, )
) Court of Appeals No. A-9797
Appellant, ) Trial Court No. 3AN-06-7583 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2129 December 7, 2007
)
          Appeal  from the Superior Court,  Third  Judi
          cial   District,  Anchorage,  Mark   Rindner,
          Judge.

          Appearances:    Eric   Holden,   in   propria
          persona, Wasilla, for the Appellant.  Douglas
          H.   Kossler,  Assistant  Attorney   General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Amici   Curiae:   Joshua  P.   Fink,   Public
          Advocate,  Anchorage; Margi  Mock,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          The  Alaska  Legislature  has  enacted  a  statute   of
limitations, AS 12.72.020(a)(3)  (4),  that sets time limits  for
filing  a  petition for post-conviction relief.  The  legislature
has  also  declared  that  an indigent  defendant  who  files  an
untimely  petition for post-conviction relief is not entitled  to
the    assistance   of   counsel   at   public   expense.     See
AS 18.85.100(c).
          The  question presented to this Court is whether,  when
an indigent defendant files a petition for post-conviction relief
that  appears  to  be untimely under the rules set  forth  in  AS
12.72.020,  the  Alaska Constitution nevertheless guarantees  the
defendant a limited right to counsel:  the right to have a court-
appointed lawyer investigate whether the defendant might be  able
to  claim the benefit of one of the exceptions or tolling periods
specified in that statute of limitations.
          For  the  reasons explained here, we conclude that  the
Alaska Constitution does guarantee this limited right to counsel.

     Background facts
     
               Eric  Holden is an indigent prisoner  who  is
     currently  attempting to litigate a petition for  post-
     conviction  relief  in  the superior  court.   In  this
     petition, Holden seeks relief from his convictions  for
     second-degree escape and fourth-degree assault.
               This  Court  affirmed Holdens convictions  on
     direct   appeal  in  Holden  v.  State,   Alaska   App.
     Memorandum  Opinion  No.  4148  (November  10,   1999).
     Holdens convictions became final on May 24, 2000, after
     the  Alaska  Supreme Court denied Holdens petition  for
     hearing.1
               Nearly  six  years  later   on  May  2,  2006
     Holden  filed his petition for post-conviction  relief,
     accompanied by a request for court-appointed counsel to
     assist him in litigating this petition.
          Under  AS  12.72.020(a)(3)(A), if a defendant
seeks direct appellate review of a criminal conviction,
and  the conviction is affirmed, any petition for post-
conviction relief relating to that conviction  must  be
filed  within  one  year  of  the  date  of  the  final
appellate  court  decision  affirming  the  conviction.
Because  Holden  did  not file his petition  for  post-
conviction  relief  until nearly six  years  after  his
conviction  became final on appeal, the superior  court
dismissed  Holdens petition for post-conviction  relief
as untimely under AS 12.72.020(a)(3)(A).  And, based on
the  conclusion that Holdens petition was untimely, the
superior  court  denied  Holdens  request  for   court-
appointed counsel.
          The  question  presented  to  this  Court  is
whether,  before  the  superior  court  ruled  on   the
timeliness of Holdens petition, Holden was entitled  to
have  an  attorney appointed at public expense for  the
limited  purpose of investigating whether Holden  might
be  able  to claim the benefit of one of the exceptions
or tolling periods listed in AS 12.72.020.

Why we conclude that the Alaska Constitution guarantees
this limited right to counsel

          In Grinols v. State, 74 P.3d 889, 894 (Alaska
2003),  the  Alaska Supreme Court ruled  that  indigent
defendants have a constitutional right (under  the  due
process  clause  of  the Alaska  Constitution)  to  the
assistance of counsel when litigating a first  petition
for  post-conviction  relief.   However,  as  explained
above,  the Alaska Legislature has declared that  these
indigent  defendants have no right to counsel if  their
petitions are untimely under AS 12.72.020.
          The  Grinols  decision does not  address  the
question of whether the constitutional right to counsel
extends  even  to  defendants who fail  to  file  their
petitions  for post-conviction relief within  the  time
limits    established   in   AS   12.72.020.    Indeed,
if  a  defendants petition is truly time-barred,  there
would seemingly be nothing for an attorney to litigate.
          But  in  cases where either the State or  the
superior court identifies a defendants petition as time-
barred,  the  defendant  has a  crucial  need  for  the
assistance  of  counsel.  This need arises  during  the
litigation  of  the  timeliness  issue   for   if   the
defendant loses this issue, the litigation is over.
          More  than  thirty years ago, in Donnelly  v.
State,  516 P.2d 396 (Alaska 1973), the Alaska  Supreme
Court   confronted  a  similar  right-to-counsel  issue
arising  from  a  different aspect  of  post-conviction
relief law.
          In  Donnelly, the supreme court was forced to
address a problem created by their earlier decision  in
Nichols  v. State, 425 P.2d 247 (Alaska 1967).  Nichols
held that an indigent defendant seeking post-conviction
relief  was  entitled to counsel at public  expense  to
assist  them  at  the  evidentiary  hearing  on   their
petition.  Id. at 255.  The following year (1968),  the
holding in Nichols was codified in former Criminal Rule
35(f) (enacted by Supreme Court Order No. 98, page 12):
     
          Indigent  Applicant.  If  the  applicant
     [for  post-conviction  relief]  is  indigent,
     [and]   the   court   determines   that   the
     application  shall not be summarily  disposed
     of on the pleadings and [the existing] record
     ...  ,  but  that the issues  raised  by  the
     application  require an evidentiary  hearing,
     counsel  shall be appointed to  assist  [the]
     indigent applicant[.]
     
               Thus, after the decision in Nichols
     and  the  enactment of Criminal  Rule  35(f),
     Alaska  law clearly provided that an indigent
     petitioner  for  post-conviction  relief  was
     entitled  to  the assistance  of  counsel  at
     public  expense   but only  after  the  trial
     court concluded that the petition presented a
     prima facie case for relief.
          In   Donnelly,  the  supreme  court
acknowledged that Criminal Rule 35(f) did not
go far enough  that this rule was unlawful to
the  extent  that it conditioned a defendants
right   to   counsel  on  the  trial   courts
preliminary determination that the defendants
petition raised issues of arguable merit.
          The  supreme court explained  that,
because a petition for post-conviction relief
can  be dismissed on the pleadings, or  on  a
motion  for  summary  judgement,  petitioners
need   the   assistance   of   counsel   when
formulating  and investigating  their  claims
for relief:

     It may be necessary, in order to develop
genuine issues, for the prisoner making  [an]
application [for post-conviction  relief]  to
prepare   supplemental   pleadings   and   to
participate   in  the  discovery   procedures
permitted  under the rule.  It  is  therefore
essential  that [the prisoner] be represented
by  competent counsel in the event that he is
unable  to  afford  an  attorney.   Only  the
[assistance]  of  counsel  will  assure  that
meritorious  claims will be fairly  presented
and  full  advantage taken of the  procedures
and  investigation contemplated by the  rule.
...   Because  [post-conviction  relief  law]
requires [the] development of genuine  issues
of  fact  in  order to merit  an  evidentiary
hearing, the [right to] counsel ...  must  be
extended  to  require representation  at  the
time the initial application is filed.

Donnelly, 516 P.2d at 399.
          In other words, as this Court noted
in   Grinols,  the  supreme  court  held   in
Donnelly  that defendants [are]  entitled  to
the  assistance  of  counsel,  not  just   in
litigating  petitions that survive[]  summary
dismissal,   but  also  during  the   initial
preparation    and   investigation    of    a
post-conviction relief case.2
          We  now  return  to  the  situation
presented in Holdens case.
          Because of the time limitations set
forth    in   AS   12.72.020,   and   because
AS  18.85.100(c)  denies  the  assistance  of
counsel to defendants who are pursuing  time-
barred  petitions for post-conviction relief,
when  an  indigent defendant files a petition
          for post-conviction relief that is arguably
time-barred, the defendant faces a  situation
similar  to  the  one  that  confronted   the
indigent  petitioner in  Donnelly.   The  law
gives the defendant a right to the assistance
of  counsel at public expense, but this right
is   conditioned  on  obtaining  a  favorable
ruling from the trial court on the timeliness
issue.  That is, the defendant is entitled to
the  assistance of counsel only if they first
convince  the trial court that their petition
is   timely  under  the  provisions  of   the
statute.
          Resolution of the timeliness  issue
can  involve considerably more than a  simple
comparison of calendar dates.
          Under  AS  12.72.020(a)(3)(A),  the
timeliness  of a petition for post-conviction
relief  hinges on the date of  the  entry  of
judgment  of ... conviction or, if an  appeal
was  filed, the date on which the [appellate]
courts  decision  [became]  final  under  the
Alaska  Rules  of Appellate  Procedure.   The
determination  of  these  dates  requires  an
understanding  of,  and  sometimes  a   legal
interpretation of, various provisions of  the
Alaska   Criminal  Rules   and   the   Alaska
Appellate Rules.
          Moreover, AS 12.72.020(b)  codifies
several  exceptions to the limitation periods
specified  in AS 12.72.020(a)(3) and  (a)(4).
It  is readily foreseeable that there will be
situations  where  legal  expertise  will  be
needed   to   understand  and   apply   these
exceptions.
          For these reasons, we conclude that
an   indigent  defendant  pursuing  a   first
petition   for  post-conviction   relief   is
entitled to the assistance of counsel for the
purpose  of  assessing (and arguing)  whether
the petition is timely.
          Our   ruling  on  this  issue   was
foreshadowed by our decision in One v. State,
127 P.3d 853 (Alaska App. 2006).
          In  One,  we confronted a situation
where  an  attorney appointed to represent  a
petitioner for post-conviction relief  sought
permission   to   withdraw   and   filed    a
certificate   of  no  arguable  merit   under
Criminal  Rule 35.1(e)(2).3  This certificate
was based on the attorneys assertion that all
of  the  petitioners claims were  time-barred
and  that, therefore, there was no  point  in
investigating the underlying merit  of  those
claims.  One, 127 P.3d at 853-54.
          We held that, in such circumstances
that is, [w]hen ... 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  is obliged to investigate potential
defenses  to  the limitation period  and,  if
that   investigation  yields   no   colorable
defense  to the limitation period,  then  the
attorneys no arguable claims certificate must
fully  explain  the attorneys  investigation,
and the results of that investigation, to the
superior court.  Id. at 856.
          Our decision in One was grounded on
our earlier decision in Griffin v. State,  18
P.3d  71 (Alaska App. 2001).  In Griffin,  we
held  that  even though an attorney appointed
to represent an indigent petitioner for post-
conviction  relief  might  properly  move  to
withdraw from the case if the petitioner  had
no arguable claim for relief, the petitioners
constitutional     right      to      zealous
representation   would  not   be   adequately
protected  unless the attorneys  no  arguable
merit    certificate   contained    a    full
explanation  of all the claims  the  attorney
ha[d]  considered and why the attorney  ha[d]
concluded that these claims [were] frivolous.
Griffin, 18 P.3d at 77.
          In  One,  we applied Griffin  to  a
particular    recurring    situation:     the
situation  where  a court-appointed  attorney
files  a  request to withdraw under  Criminal
Rule 35.1(e)(2)(C) after concluding that  all
of   the  petitioners  claims  are  frivolous
because  they are time-barred.   For  present
purposes, the crucial aspect of our  decision
in   One   is  our  conclusion  that  Griffin
requires attorneys to give a full explanation
of  their statute-of-limitations analysis  in
this situation.
          Our    conclusion   in   One    was
implicitly  premised  on  the  idea  that  an
indigent   petitioner   for   post-conviction
relief  is entitled to the zealous assistance
of  counsel when litigating the issue of  the
petitions timeliness.
          We   now   expressly  affirm   this
implicit    premise:    When   an    indigent
defendants first petition for post-conviction
relief  is  challenged as  time-barred  under
AS    12.72.020,   the   defendant   has    a
constitutional  right to  the  assistance  of
counsel when responding to that challenge.

Conclusion

     The  two  decisions  of  the  superior  court
(refusing to appoint counsel to represent  Holden,
and  dismissing  his petition for  post-conviction
relief as time-barred) are REVERSED.  The superior
court  shall  re-open Holdens petition  for  post-
conviction  relief,  and  the  superior  court  is
directed  to  appoint counsel to represent  Holden
for  the  limited  purpose of  assessing  and,  if
necessary,  litigating whether  his  petition  for
post-conviction  relief is  time-barred  under  AS
12.72.020.
     We do not retain jurisdiction of this case.

_______________________________
  1 See Appellate Rules 507(b) and 512(a)(2)[b].

2Grinols, 10 P.3d at 622.

3See Griffin v. State, 18 P.3d 71, 75 (Alaska App. 2001),
where  this Court interpreted Criminal Rule 35.1(e)  to
require  an  assertion  that  all  of  the  petitioners
potential claims had no arguable merit.

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