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State v. Carlson (3/15/2019) ap-2641

State v. Carlson (3/15/2019) ap-2641

                                                    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  

         errors to the attention of the Clerk of the Appellate Courts:  



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                                     E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                   Court of Appeals No. A-11636  

                                   Appellant,                    Trial Court No. 3AN-07-12263 CI  



                           v.  

                                                                              O P I N I O N  

JASON LEE CARLSON,  



                                   Appellee.                        No. 2641 - March 15, 2019  



                  Appeal                                

                             from  the  Superior   Court,  Third  Judicial  District,  

                  Anchorage, Jack Smith, and Frank A. Pfiffner, Judges.  



                  Appearances:        James  J.  Fayette,  Assistant  Attorney General,  

                                                                                       

                  Office of Special Prosecutions and Appeals, Anchorage, and  

                                

                  Craig W. Richards, Attorney General, Juneau, for the Appellant.  

                                                       

                  Glenda J. Kerry, Law Office of  Glenda J. Kerry, Girdwood,  

                                                             

                  under contract with the Office of Public Advocacy, Anchorage,  

                                                             

                  for the Appellee.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                        

                  District Court Judge.*  



                  Judge ALLARD.  



    *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                     The State appeals the superior court's decision to grant post-conviction  

                                                                                                              



relief to Jason Lee Carlson, who was convicted of second-degree murder for killing his  

                                                                                                                                 



best friend, George Featherly. Carlson was convicted following two trials in the superior  

                                                                                                                          



court.      At both  of these trials,  Carlson  was  represented  by Allen Dayan, a private  

                                                                                                                           



criminal defense attorney hired by Carlson's parents.  

                                                                       



                     During the investigation of the homicide, Carlson (who was then seventeen  

                                                                                                                       



years old) gave conflicting accounts of Featherly's death to the police.  Chief among  

                                                                                                                           



these accounts was Carlson's assertion that Featherly was shot by a black man named  

                                                                                                                            



"B" or "Bee."  But Carlson eventually told Dayan that these earlier accounts were false  

                                                                                                                               



- that, in truth, Carlson accidentally shot Featherly while he was handling a pistol that  

                                                                                                                                



Featherly had recently purchased.  

                                    



                     After  Carlson  told  Dayan  that  he  shot  Featherly  by  accident,  Dayan  

                                                                                                                           



arranged a new police interview for Carlson. At this interview, with Dayan's prompting  

                                                                                                                      



and assistance, Carlson offered this new version of events to the police. (This interview  

                                                                                                                       



was videotaped and later shown at Carlson's trials.) Despite Carlson's assertion that the  

                                                                                                                                 



killing  had  been  accidental,  the  State  charged  him  with  first-degree  murder  (i.e.,  

                                                                                                                              



intentionally killing Featherly).  

                                



                     Then,whileDayanandCarlson werepreparing for trial,Carlson told Dayan  

                                                                                                                            



that the "accidental shooting" version of events was false. Carlson informed Dayan that  

                                                                                                                                



he intended to take the stand at trial and reaffirm his earlier assertion that Featherly was  

                                                                                                                                



killed by a black man named B.  

                                              



                     Despite Carlson's recantation of the police confession that Dayan had  

                                                                                                                                



helped facilitate, Dayan continued to represent Carlson at both of his trials. At Carlson's  

                                                                                                                       



first trial, the jury acquitted him of first-degree murder but was unable to reach a verdict  

                                                                                                                            



on the charge of second-degree murder. At Carlson's second trial, he was convicted of  

                                                                                                                                   



second-degree murder.  

                        



                                                               - 2 -                                                         2641
  


----------------------- Page 3-----------------------

                                              Carlson later filed an application for post-conviction relief asserting that he                                                                                                                                                                       



received ineffective assistance of counsel from Dayan. Specifically, Carlson contended                                                                                                                                                                                  



that Dayan acted incompetently when he failed to withdraw from the case after it became                                                                                                                                                                                        



clear thatCarlsonintendedto                                                                        takethestand                                    and repudiate the accidental shooting version                                                                                   



of events that Dayan had actively facilitated and previously promoted as the truth.                                                                                                                                                                                       



                                              The superior court ultimately granted post-conviction relief to Carlson. In                                                                                                                                                                           



its order granting relief, the superior court found that Dayan's active participation in                                                                                                                                                             



Carlson's   later  repudiated   videotaped   confession   constituted   an   "actual   conflict   of  



interest" that gave rise to a "non-rebuttable presumption of prejudice."                                                                                                                                                                                    The superior   



court also found that Dayan's failure either to withdraw from Carlson's case, or to at                                                                                                                                                                                                               



least seek a protective order that would have prevented the jury from knowing about                                                                                                                                                                                                     



Dayan's    involvement    in    the    now-repudiated    videotaped    confession,    constituted  

ineffective assistance of counsel under                                                                                                Risher v. State                                     .1  



                                                                                                                                                                                                                                                                                      

                                              TheStatenowappeals thesuperiorcourt's decision, raising multipleclaims  



                                                                                                                                                                                                                                                                                                  

of error. In its brief, the State attacks the superior court's analysis as unsupported by the  



                                                                                                                                                                                                                                                                                               

record and legally flawed.  For the reasons explained here, we agree with the State that  



                                                                                                                                                                                                                                                                                                 

the superior court's conflict analysis is flawed and, in key respects, unsupported by the  



                                                                                                                                                                                                                                                                                                 

evidentiary record.  We therefore reverse that ruling.  We also conclude that there are  



                                                                                                                                                                                                                                                                                                

sufficient  questions  about  the  superior  court's  findings  and  legal  reasoning  on  the  



                                                                                                                                                                                                                                                                                              

ineffective assistance of counsel claim that a remand for further proceedings on that  



                             

claim is required.  



                                                                                                                                                                                                                                                                                           

                                              The State also raises three additional claims of error on appeal.  The State  



                                                                                                                                                                                                                                                                                               

argues first that Carlson's application for post-conviction relief was time-barred, and  



                                                                                                                                                                                                                                                                                             

that the superior court erred when it allowed Carlson to pursue this application.  We  



            1          Risher v. State, 523 P.2d 421 (Alaska 1974).  



                                                                                                                                              -  3 -                                                                                                                                      2641
  


----------------------- Page 4-----------------------

reject   the   State's   arguments   primarily   on   preservation   grounds,   and   we   affirm   the  



superior court's timeliness ruling.                               The State also argues that Carlson was barred as a                                            



matter of law from raising any ineffective assistance of counsel claims against his trial                                                                  



                                                                                     2  

                                                                                                                                                

attorney under our decision in                           Arnett v. State            .   We disagree with the State's expansive  



                                                                                                                              

reading of Arnett , and we affirm this aspect of the superior court's decision.  



                                                                                                                                                           

                         Lastly, the State argues that the superior court erred when it found that  



                                                                                                                                                  

Carlson's appellate attorney was ineffective for failing to raise the issue of Dayan's  



                                                                                                                                                   

effectiveness in Carlson's direct appeal. Carlson concedes that this aspect of the superior  



                                                                                                                                                                3  

                                                                                                                                                    

court's ruling is erroneous.  This concession is well taken, and we reverse this ruling. 



                                                                        

            Factual background and prior proceedings
  



                                               

                         The police investigation
  



                                                                                                                                    

                         In the late evening of September 24, 1998, police found a vehicle parked  



                                                                                                                                                    

on the side of King Street in Anchorage.  The car's engine and headlights were running  



                                                                                                                                                    

and the parking brake was engaged.  Both front doors were open.  Inside the car, the  



                                                                                              

police discovered the body of seventeen-year-old George Featherly.  Featherly's body  



                                                                                                                                                       

was in the driver's seat, covered up by a jacket.  Featherly had been killed by a single  



                                                                                                                                             

close-range gunshot to the back of his head.   According to the medical examiner's  



                                                                                                                                                        

testimony  at  trial,  the  gun  must  have  been  fired  only  "fractions  of  an  inch"  from  



                       

Featherly's head.  



      2     Arnett v. State , 938 P.2d 1079 (Alaska App. 1997).  



      3     See   Barry  v.  State,   675   P.2d  1292,  1295-96  (Alaska  App.  1984)  (noting  that  



ineffective  assistance    claims  "must  ordinarily    be  litigated  in  post-conviction  relief  

proceedings" because "the record of the trial proceedings will seldom conclusively establish                                                       

incompetent representation").  



                                                                            - 4 -                                                                       2641
  


----------------------- Page 5-----------------------

                    During the initial investigation into Featherly's death, seventeen-year-old  

                                                                                                        



Jason Carlson - Featherly's best friend - came under suspicion. Carlson initially told  

                                                                                                                               



police that he had lost track of Featherly at the nearby Dimond Center Mall around 7:30  

                                                                                                                              



p.m.  on the day of the shooting.   After the mall security tapes failed to corroborate  

                                                                                                                   



Carlson's story, Carlson admitted to the police that he had been in Featherly's car when  

                                                                                                                             



the shooting took place.   Carlson told the police that he and Featherly had left the  

                                                                                                  



Dimond Center to purchase a gun from a man named "B" or "Bee" - and that B, after  

                                                                                                                              



attempting to rob Featherly, shot him in the back of the head while Featherly  was  

                                                                                                              



driving. According to Carlson's account, the car swerved, but Carlson was able to reach  

                                                                                                                             



over, steer the car to the side of the road, and engage the emergency brake.  As this was  

                                                                                                                               



happening, another car going the other direction passed by.  

                                                                                       



                    In this second version of events, Carlson claimed that, after the shooting,  

                                                                                                                       



he grabbed Featherly's Makarov pistol and shot B. Carlson also claimed that he jumped  

                                                                                                                          



into the back seat and struggled with B.  (Carlson would later recant this portion of his  

                                                                                                                                



statement when he testified at his two trials.)   Carlson also initially denied covering  

                                                                                                                       



Featherly's body with the jacket, suggesting to the police that B must have done that.  

                                                                                                                            



                    Carlsontold thepolicethat Bfled soon after the shooting, taking the murder  

                                                                                                                          



weapon with him.  Carlson then also fled, taking Featherly's Makarov pistol with him.  

                                                                                                                                      



Carlson told the police that when he got home, he hid the Makarov pistol in his house  



and he called Featherly's pager in an attempt to create a false alibi for himself.  (The  

                                                                                                                             



police  were  already  aware  of  Carlson's  call  to  Featherly's  pager,  and  the  police  

                                                                                                                           



subsequently located the Makarov pistol in Carlson's house inside of a stereo speaker  

                                                                                                                         



where Carlson had told the police he hid it.)  

                                                                



                    In the next few weeks, the police investigated Carlson's "B" version of  

                                                                                                                                 



events, but they were unable to find anyone who matched Carlson's description of B,  

                                                                                                                                 



nor  anyone  who  had  sought  treatment  for  a  gunshot  wound  that  night.                                          In  their  

                                                                                                                        



                                                              -  5 -                                                        2641
  


----------------------- Page 6-----------------------

subsequent interviews with Carlson, the police were openly skeptical of this version of                                                                                                                                                                                                         



events. In one interview, the lead investigator, Detective Larry Arend, urged Carlson to                                                                                                                                                                                                         



tell the truth about what happened.  Arend also told Carlson that it would be a "whole     



new ballgame" if Carlson had accidentally shot Featherly.                                                                                                           



                                              On October 20 Carlson's parents retained privatecriminal defense attorney                                                                                                                                                     



Allen Dayan to advise Carlson in connection with the police investigation.                                                                                                                                                                                        Carlson at  



first told Dayan the same thing he told the police - that B shot Featherly. Dayan hired                                                                                                                                                                                              

private investigators to try to locate B, and he passed on any leads to the police.                                                                                                                                                                                             4  



                                                                                                                                                                                                                                                                        

                                              A few weeks later, on November 6 Carlson's mother found what appeared  



                                                                                                                                                                                                                                                                               

to be a death threat outside Carlson's window. The death threat was composed of cut-out  



                                                                                                                                                                                                                                                                                            

magazine letters that read "U will d [picture of an eye] 2nite II" - i.e., "you will die  



                                                                                                                                                                                                                                                                                             

tonight too."  Carlson's mother gave the death threat to Dayan, who turned it over to the  



                                                                                                                                                                                                                                                                                 

police shortly before Carlson's first trial - in early February, 1999.  After the police  



                                                                                                                                                                                                                                                                      

received the death threat, they subjected it to forensic testing and discovered Carlson's  



                                                                                                                                                                                                                                                                            

fingerprints in the tape that was used to attach the letters to the paper.  At trial, Carlson  



                                                                                                                                                                                                                                                                                  

admitted that he fabricated the death threat note.  He testified that he felt that the police  



                                                                                                                                                                                                                                                                              

were not doing enough to find B, and he hoped that the fake death threat would prompt  



                                                                        

them to step up their investigation.  



                                                                                                                                                                                                                        

                                              On the same day that Carlson's mother found the fabricated death threat,  



                                                                                                                                                                                                                                                                                        

the police located the driver of the oncoming vehicle that passed by Featherly's car after  



           4           During the post-conviction relief discovery in this case, Carlson obtained recordings                                                         



of Dayan's conversations with the police.                                                                                                None of these statements were played to the jury   

or known to Carlson prior to the post-conviction relief proceedings.                                                                                                                                                                In those recordings,  

Dayan can be heard expressing skepticism to Detective Arend about Carlson's "B" version   

of events, including questioning why B would not have just shot Carlson too.                                                                                                                                                                                      Dayan also  

disparages Carlson as "not terribly bright." The superior court refers to this recording in a   

footnote, although the superior court does not directly explain its significance to its analysis.   



                                                                                                                                            -  6 -                                                                                                                                    2641
  


----------------------- Page 7-----------------------

Featherly was shot.   The driver, Heather Dickens, later testified at both of Carlson's  

                                                                                                                       



trials.  



                     In her trial testimony, Dickens described seeing Featherly's car erratically  

                                                                                                                      



swerve, and she also described driving past the car and looking into the car as she passed.  

                                                                                                                                       



As Dickens looked into the car, she saw one man, who "looked like he was passed out,"  

                                                                                                                              



sitting in the driver's seat "with his head sort of back" and his hands on the steering  

                                                                                                                         



wheel. She also saw another man with his head by the driver's right shoulder. It looked  

                                                                                                                           



to Dickens as if this second man was leaning forward between the front seats with his  

                                                                                                                                 



body partially in the back seat.  

                                         



                     Dickens admitted that she could not see fully into the back seat of the car,  

                                                                                                                                



but she was certain that there was nobody in the front passenger seat, and that there were  

                                                                                                                              



only two men in the car.  Dickens was also "positive" that the man in the back seat was  

                                                                                                                                



not black.  (Carlson is not black.)  

                                          



                    After interviewing Dickens on November 6, 1998, Detective Arend called  

                                                                                                                             



Dayan and told him that the police had an eyewitness, and that the eyewitness saw only  

                                                                                                                               



two men in the car and did not see any black man in the car.  Arend also told Dayan that  

                                                                                                                                



the district attorney's office was considering filing first-degree murder charges against  

                                                                                                                           



Carlson.  



                     Dayan  informed  Carlson  of  what  he  had  learned  from  the  detective.  

                                                                                                                                       



According to Dayan's testimony at the later post-conviction relief evidentiary hearing,  

                                                                                                                         



Carlson responded to this information by asking, "What if it [i.e., the shooting] was an  

                                                                                                                                  



accident?"           In  response,  Dayan  explained  to  Carlson  that  if  he  shot  Featherly  

                                                                                                                      



accidentally, he could face a charge of manslaughter or criminally negligent homicide,  

                                                                                                                      



but that either of these charges was much less serious than the first-degree murder charge  

                                                                                                                            



that the State was currently considering. According to Dayan, after he gave Carlson this  

                                                                                                                                



explanation, Carlson told Dayan that the B story was not true, and that the truth was that  

                                                                                                                                



                                                               -  7 -                                                        2641
  


----------------------- Page 8-----------------------

Carlson shot Featherly by accident.  Carlson also told Dayan that he now wanted to tell  

                                                                                                                               



the police the truth.  

                      



                    On  November  9  Dayan  contacted  Detective  Arend  and  told  him  that  

                                                                                                                             



Carlson now admitted that he had been alone in the car with Featherly, and that he  

                                                                                                                                



accidentally shot Featherly.   Dayan told Arend that Carlson wanted to participate in  

                                                                                                                                 



another police interview, where he would confess to accidentally killing Featherly.  

                                                                                                               



                    That same day, Dayan accompanied Carlson and his family to the police  

                                                                                                                          



station - but, upon their arrival, Dayan requested that the interview be delayed for one  

                                                                                                                              



more day.  According to Arend's later trial testimony (which was not objected to by  

                                                                                                                                



Dayan), Dayan told Arend that he "wanted to make sure that he had all of his T's crossed  

                                                                                                                         



[and] I's dotted," and also to make sure that "what [Carlson] was telling him was the  

                                                                                                                               



truth."  Dayan told Arend that he (Dayan) was "pretty confident ... that what [Carlson]  

                                                                                                                     



had told him was the truth, but he just wanted to make sure of it."  

                                                                                                



                    The next day, November 10, Dayan and Carlson returned to the police  

                                                                                                                          



station for the interview.  Arend conducted this interview, which was videotaped and  

                                                                                                            



audiotaped.  



                    At the beginning of the interview, Detective Arend advised Carlson of his  

                                                                                                                               



Miranda  rights.             Carlson  waived  his  Miranda  rights  and  confirmed  that  he  was  

                                                                                                                             



participating intheinterviewvoluntarily, after consultingwith his attorney (Dayan), who  

                                                                                                                              



was present throughout the interview.  

                                           



                    Carlson then proceeded to offer a new "accidental shooting" account of  

                                                                                                                                



what happened.  According to Carlson's new version of events, Carlson and Featherly  

                                                                                                                     



were alone in Featherly's car when the shooting occurred.  Carlson was sitting in the  

                                                                                                                               



back seat and Featherly was driving on an unpaved section of King Street that was filled  

                                                                                                                            



with potholes. Featherly had recently bought a gun, and Carlson was inspecting this gun,  

                                                                                                                             



which he did not realize was loaded. Carlson told Arend that he was "screwing around"  

                                                                                                                        



                                                              -  8 -                                                        2641
  


----------------------- Page 9-----------------------

with the gun and pointing the gun at Featherly when the gun suddenly went off, killing                                                                



Featherly.     Carlson   also   admitted   that   his   finger   was   on  the   trigger   when   the   gun  

discharged.5  



                                                                                                                                                              

                         Carlson told Arend that he panicked after the shooting.  He admitted to  



                                                                                                                                                             

Arend that he wiped down the car for fingerprints, and he also admitted (contrary to his  



prior statements) that he covered Featherly's body with a jacket so that it could not be  



                                                                                           

easily seen.  Carlson then fled with Featherly's two guns, throwing the gun that killed  



                                                                                                                                                       

Featherly into a nearby creek and hiding the Makarov pistol in his home.  The police  



                                                                                                              

later looked for a gun in the creek, but they could not find one.  



                                                                                                                                                             

                         Both the audio recording and the video recording of this November 10  



                                                                                                                                                    

confession show that Dayan was an active participant in the confession.   At various  



                                                                                                                                                            

points during theinterview,Dayan encouraged Carlsontoprovidemoredetails about this  



                                                                                                                                                

new version of events.  Dayan also vouched for Carlson's claim that it was Carlson's  



                                                                                                                                                       

habit to sit in the back seat even when no one was in the front passenger seat.  In the  



                                                                                                                                                           

interview, Dayan stated that he "[thought] the evidence will bear it out" that this was  



                                                                                                                             

"just [Carlson's] habit and style; he likes to ride in the back seat."  



                                                                                                                                                              

                         Dayan was also an enthusiastic participant in the reenactment suggested by  



                                                                                                                                                             

Detective Arend.  Dayan agreed to play the role of Featherly in the reenactment. On the  



                                                                                       

videotape portions of the interview shown to the jury at Carlson's second trial, Dayan  



                                                                                                                                                        

can be seen scooting his chair around so that it is positioned in front of Carlson's chair,  



                                                                                                                                                       

as though Dayan was sitting in the driver's seat and Carlson was in the back seat. Dayan  



                                                                                                                                                                

can also be seen handing Carlson his cell phone and urging him to use the phone as a  



      5      Carlson made a similar admission in an interview with a police polygrapher that was   



conducted after the recorded interview with Arend.   According to the State's briefing on   

appeal, the results of the polygraph were "inconclusive." The fact that Carlson had submitted        

to a police polygraph was not told to the jury at either trial.  



                                                                            -  9 -                                                                      2641
  


----------------------- Page 10-----------------------

prop for the gun that killed Featherly.  In the video, Carlson handles the "gun," but he   



does not place it directly against Dayan's head.                                                                                                                                   



                                                         Following the videotaped confession, Carlson was allowed to leave the                                                                                                                                                                                                                                       



police station.                                                 But the next day Carlson was arrested and charged with first-degree                                                                                                                                                                                            



murder, second-degree murder, and multiple counts of evidence tampering and weapons                                                                                                                                                                                                                                                                                                    



misconduct.  



                                                          The grand jury later indicted Carlson on the following charges:                                                                                                                                                                                                              one count   



of first-degree murder (for intentionally shooting Featherly); an alternative count of                                                                                                                                                                                                                                                       



 second-degree    murder    (for    knowingly    shooting    Featherly    under    circumstances  



manifesting extreme indifference to human life); one count of evidence tampering for                                                                                                                                                                                                                                                                                  



making the fake alibi phone call to                                                                                                                              Featherly's  pager;  a   second   count of evidence                                                                                                                       



tampering   for  wiping   off   the   fingerprints   from   the   car;   a   third   count   of   evidence  



tampering for laying Featherly's body on the seat and covering it with the jacket; a fourth                                                                                                                                                                                                                                                          



count of evidence tampering                                                                                                       for   disposing   of the murder weapon; a                                                                                                                                         fifth  count of   



evidence tampering for creating the fake death threat; one count of third-degree weapons                                                                                                                                                                                                                                                      



misconduct for possessing the murder weapon (a concealable firearm) after having been                                                                                                                                                                                                                                                                          



adjudicated a delinquent minor for a crime that would have been a felony if Carlson had                                                                                                                                                                                                                                                                             



been an adult; and a second count of third-degree weapons misconduct for possessing                                                                                                                                                                                                                                                 



Featherly's Makarov pistol after having been adjudicated a delinquent minor for a crime                                                                                                                                                                                                                                                               

that would have been a felony if Carlson had been an adult.                                                                                                                                                                                                     6  



               6             AS 11.41.100(a)(1)(A); AS 11.41.110(a)(2); AS 11.56.610(a)(1), (2) and/or (4); and  



                                                                                                                                                                                                                                                     

AS 11.61.200(a)(1), respectively.   Carlson had previously been adjudicated a delinquent  

                                                                                                                                                                                                                                                                                                                    

minor for committing burglary (conduct that would have been a felony if he had been an  

adult).  



                                                                                                                                                                             -  10 -                                                                                                                                                                         2641
  


----------------------- Page 11-----------------------

                     Carlson's recantation of the "accidental discharge" version  

                                                                                                     

                    of events  

                         



                    Approximately one month after his arrest (i.e., sometime in December  

                                                                                                                     



1998), Carlson called Featherly's father from jail.  In his conversation with Featherly's  

                                                                                                                   



father (which was recorded by corrections personnel), Carlson said that it was not true  

                                                                                                                               



that he had shot Featherly, and he declared that he had given a false confession to the  

                                                                                                                                



police.  Carlson also falsely claimed that he had been receiving death threats.  (Carlson  

                                                                                                                        



later admitted at trial that his statement to Featherly's father about "death threats" was  



a reference to the fake death threat that he himself had created.)  

                                                                                     



                    Around  this  same  time,  Carlson  called  Dayan  and  told  him  that  the  

                                                                                                                               



accidental shooting story was not true - that, instead, the truth was his earlier assertion  

                                                                                                                       



that B shot Featherly.  Dayan testified at the post-conviction relief evidentiary hearing  

                                                                     



that Carlson had previously been very close to Featherly's family, and that Carlson was  

                                                                                                                               



upset that Featherly's family blamed himfor their son's death. The testimony at trial was  

                                                                                                                               



that the two were "like brothers," frequently staying over at each other's houses.  

                                                                                                                



                    Carlson told Dayan that, if his case went to trial, he intended to take the  

                                                                                                                                



stand and testify that his videotaped confession was false and that B killed Featherly.  

                                                                                                                     



However,  with  Carlson's  permission,  Dayan  continued  to  try  to  negotiate  a  plea  

                                                                                                                             



agreement with the State.  

                               



                    The plea negotiations ultimately broke down sometime in early February  

                                                                                                                       



1999, at which point it became clear that the case was headed to trial and that Carlson  

                                                                                    



would  take  the  stand  and  testify  that  B  shot  Featherly  -  thereby  repudiating  the  

                                                                                                                               



videotaped confession that Dayan had arranged for and actively participated in.  

                                                                                                                      



                    Dayan did not move to withdraw as Carlson's counsel or take any steps to  

                                                                                                                                  



address the fact that the jury would likely become aware that the attorney who was  

                                                                                                                              



representing Carlson at trial had previously promoted Carlson's accidental discharge  

                                                                                                                      



                                                             -  11 -                                                        2641
  


----------------------- Page 12-----------------------

version of events as the truth.  According to Dayan's testimony at the post-conviction  

                                                                                                              



relief evidentiary hearing, it never occurred to him to withdraw, nor did he see any  

                                                                                                                                



reason to believe that Carlson would be better served by having a different attorney  

                                                                                                                                       



represent him at trial.  Dayan also defended his performance as Carlson's trial attorney,  

                                                                                                                        



and argued that the criticisms now being leveled against him were unfair.  

                                                                                                        



                     Carlson's first trial  

                                             



                    At Carlson's first trial, the prosecution's primary theory was that Carlson  

                                                                                                                          



intentionally shot Featherly over a dispute involving money and/or a girl.  In support of  

                                                                                                                                   



this theory, the prosecutor introduced evidence that Featherly owed Carlson $30 and that  

                                                                                                                                



Featherly was dating (or possibly engaged to) a girl that Carlson used to date more than  

                                                                                                                               



a year earlier.  

           



                    During  his  opening  statement,  the  prosecutor  played  portions  of  the  

                                                                                                                                



videotape of the November 10 interview in which Carlson confessed to accidentally  

                                                                                                                   



shooting Featherly.   And in the State's case-in-chief, the prosecutor introduced the  

                                                                                                                                 



complete audio recording of this interview into evidence, but the prosecutor failed to  

                                                                                                                                   



introduce the corresponding videotape of the interview into evidence.  This oversight  

                                                                                                                       



was discovered when, during jury deliberations, the jurors asked to re-watch the portions  

                                                                                                                         



of the videotape that they had been shown during the prosecutor's opening statement.  

                                                                                                                                       



The trial judge told the jurors that, while the audio recording was available, the videotape  

                                                                                                                       



had not been introduced into evidence and was therefore unavailable for their review.  

                                                                                                                         



                     Carlson took the stand at his first trial and, as he had previously informed  

                                                                                                                        



Dayan he would do, Carlson testified that B shot Featherly. Carlson admitted, however,  

                                                                                                                        



that it was not true that he shot B in return.  Carlson told the jury that he had lied about  

                                                                                                                             



shooting and struggling with B because he felt that it was "cowardly" for him not to have  

                                                                                                                               



                                                              -  12 -                                                        2641
  


----------------------- Page 13-----------------------

done so, and he felt "guilty" that he had done nothing to the man who killed his best  

                                                                                                                             



friend.  



                    Carlson also admitted that he had repeatedly lied about what happened,  

                                                                                                                    



starting with his initial interview with the police where he claimed that he had not been  

                                                                                                                             



present when Featherly was killed.  Carlson testified that he later falsely confessed to  

                                                                                                                                 



accidentally shooting Featherly because he felt overwhelmed by the police investigation  

                                                                                                                 



and he "just wanted everybody off my back." Carlson also stated that he thought that he  

                                                                                                                                



would not get into any trouble if he claimed to have accidentally shot Featherly.  

                                                                                                           



                    Carlson admitted that he engaged in most of the conduct that formed the  

                                                                                                                               



basis for the evidence tampering and weapons misconduct charges.  That is, Carlson  

                                                                                                                        



admitted to making the fake alibi call to Featherly's pager, wiping down the car for  

                                                                                                                               



fingerprints, covering Featherly's body with a coat, possessing the Makarov pistol, and  

                                                                                                                               



making the fake death threat note that his mother found outside his window.  However,  

                                                                                                                     



Carlson denied that he ever possessed the gun that was used to kill Featherly, and he  

                                                                                                                                



denied throwing that gun into the creek - conduct that was the basis for one of the  

                                                                                                                               



weapons misconduct charges and one of the evidence tampering charges.  

                                                                                                    



                    During his cross-examination of Carlson, the prosecutor focused primarily  

                                                                                                                      



on the number of different lies that Carlson had told, and the prosecutor had Carlson  

                                                                                                                        



admit that many of his prior statements were lies. Dayan subsequently argued in closing  

                                                                                                                         



argument that, while the State had proved that Carlson was a liar, the State had not  

                                                                                                                               



proved beyond a reasonable doubt that Carlson was a murderer.  

                                                                                   



                    After deliberating for severaldays and requesting multiple playbacks of the  

                                                                                                                                



testimony (including the request to view the videotape of the November 10 confession  

                                                                                                                    



that was denied because the videotape was not in evidence), the jury announced its  

                                                                                                                                



verdicts.  The jury acquitted Carlson of first-degree murder, rejecting the prosecutor's  



theory that Carlson had intentionally killed his best friend while his friend was driving  

                                                                                                                         



                                                             -  13 -                                                        2641
  


----------------------- Page 14-----------------------

the car Carlson was riding in.   However, the jury could not reach a unanimous verdict                      



                                                                                                                                                7  

on the second-degree murder charge, and a mistrial was declared on that charge.                                                                     



                                                                                                                                                       

                        The jury convicted Carlson of the four evidence tampering charges that he  



                                                                                                                                                

hadadmitted during his trialtestimony,as wellas the weapons misconduct charge related  



                                                                                                       8  

                                                                                                                                                        

                                                                                                          But the jury was unable to  

to the Makarov pistol, which Carlson had also admitted. 



                                                                                                                                              

reach a verdict on the evidence tampering and weapons misconduct charges that Carlson  



                                                                                                                                         

had denied - charges that would have required the jury to find that Carlson personally  



                                                  

handled the gun that killed Featherly.  



                                                                                                                                       

                        According to Dayan's testimony at the post-conviction relief evidentiary  



                                                                                                                                                

hearing, both  he and  Carlson's  family were "surprised" and "elated" by  the jury's  



                                                                                                                                            

verdicts at Carlson's first trial.  Dayan testified that it was clear from the jury's behavior  



                                                                                                                                                      

during closing argument that his defense strategy of arguing that Carlson was a liar but  



                                                                      

not a murderer had resonated with the jurors.  



                                                                  

                        Carlson's second trial  



                                                                                                                                            

                        At thesecondtrial, Carlson gavesubstantially thesametestimony,although  



                                                                                                                                                    

he provided some additional detail about why he told the police that he accidentally shot  



                                                                                                                                           

Featherly. According to Carlson, he falsely confessed to accidentally shooting Featherly  



                                                                                                                                             

because nobody would believe the truth - i.e., that B shot Featherly.  Carlson testified  



                                                                                                                                             

that Dayan told him that nobody would believe that B shot Featherly because Carlson  



                                                                                                                                          

had already "lied so much."   Carlson also testified that Detective Arend's statement  



                                                                                  

about an accidental shooting being a "whole new ballgame" led him to believe that he  



      7     The jury was not instructed on any lesser included charges at the first trial.                                                      At the  



second trial, the jury was instructed on the lesser included charge of manslaughter.  



      8     Carlson does not challenge these convictions in his application for post-conviction  



relief.  



                                                                        -  14 -                                                                   2641
  


----------------------- Page 15-----------------------

would not get into much trouble, if any, if he falsely told the police that the shooting was                                                                                                                                           



an accident.   



                                     The main difference between the two trials, however, was the shift in the                                                                                                                          



prosecution's theory of the case.                                                              With first-degree murder no longer an option, the                                                                 



prosecutor argued that Carlson had told a basically truthful version of events during the                                                                                                                                                



November   10   confession   -   and   that   Carlson's   accidental   shooting   of   Featherly  



constitutedsecond-degreemurder becauseitmanifested                                                                                                      extremeindifferenceto thevalue                                             



of human life.                           The prosecutor told the jury, "Jason Carlson did the stupidest thing he's                                                                                                                   



ever done in his life [when he held] a gun he didn't know ... was loaded to the back of                                                                                                                           

George Featherly's head.                                                 The gun went off, and he's been lying about it ever since."                                                                                                          9  



                                                                                                                                                                                                                           

                                     At various points during thesecond trial, theprosecutor referred to Dayan's  



                                                                                                                                                                                                                                       

presence at the November 10 police interview.  In closing argument, the prosecutor told  



           

the jury:  



                                                                                                                                                                                                 

                                      [Y]ou've got the interview on the [10th] of November.  It's  

                                                                                                                                                                                              

                                     on the videotape. This is in the presence of Mr. Dayan. With  

                                                                                                                                                                                                   

                                     his own attorney there.   After presumably he's had all the  

                                                                                                                                                                                               

                                     options laid out ... .  Look, any promises, any threats?  No.  



                                                                                                                                                                                                                                         

                                     In his closing argument to the defense, Dayan continued to argue that the  



                                                                                                                                                                                                                                                    

 State had proved Carlson was a liar but had failed to prove that he was a murderer.  



                                                                                                                                                                                                                     

Dayan's closing argument also focused on various discrepancies in Heather Dickens's  



                                                                                                                                                                                                                                                    

testimony,  including  the  fact  that  she  did  not  have  a  full  view  of  the  back  seat.  



                                                                                                                                                                                                                                         

According to Dayan, what Dickens actually saw was Carlson after he moved out of the  



                                                                                                                                                                               

front seat so that he could grab the steering wheel after B shot Featherly.  



                                                                                                                                                                                                                                            

                                     Lastly, Dayan addressed the reasons why Carlson would falsely confess to  



                                                                                                                                                                                                            

accidentally shooting Featherly. Dayan emphasized Carlson's youth, and susceptibility  



          9        See AS 11.41.110(a)(2).  



                                                                                                                -  15 -                                                                                                            2641
  


----------------------- Page 16-----------------------

to pressure, arguing that Carlson was overwhelmed by the police investigation.                                                                               Dayan  



also   emphasized   that   Carlson   was   easily   influenced  by  the   adults   around   him   -  



including both Detective Arend and Dayan himself.                                      



                          Following its deliberations, the second jury convicted Carlson of second-                                                         



degree murder and the two remaining evidence tampering and weapons misconduct                                                                       



charges.  



                           Carlson's sentencing  

                                                



                          The trial judge sentenced Carlson to 50 years' imprisonment with 10 years  

                                                                                                                                                                 



suspended for the second-degree murder conviction.  Carlson's composite sentence for  

                                                                                                                                                                      



the murder and the evidence tampering and weapons misconduct charges was 64 years'  

                                                                                                                                                               



imprisonment with 17 years suspended (47 years to serve).  

                                                                                                        



                          During the sentencing hearing, the trial judge expressly found that Carlson  

                                                                                                                                                            



had perjured himself at his two trials.  The judge declared that Carlson's story about a  

                           



black man named B shooting Featherly was "patently false":  

                                                                                                                          



                          I listened to it twice.   I don't believe a word of it.   There  

                                                                                                                                    

                          wasn't a B present. B didn't shoot anybody, and Mr. Carlson  

                                                                                                                                  

                          did not shoot B.  He testified [that] all those things occurred,  

                                                                                                                               

                          but they didn't, and he did commit perjury in telling that  

                                                                                                                                         

                           story.  



                           Carlson's direct appeal and subsequent federal litigation  

                                                                                                                          



                          Carlson appealed his murder  conviction and his sentence.   This Court  

                                                                                                                                                               



                                                                                                                              10  

affirmed Carlson's conviction and sentence on January 27, 2006.                                                                                           

                                                                                                                                  The Alaska Supreme  



                                                                                                               

Court denied Carlson's petition for hearing on May 24, 2006.  



       10    Carlson v. State, 128 P.3d 197 (Alaska App. 2006).  



                                                                                -  16 -                                                                          2641
  


----------------------- Page 17-----------------------

                            Around the time that the Alaska Supreme Court denied Carlson's petition                                                                    



for   hearing,   a private criminal defense                                            attorney   from North Carolina contacted                                                 the  



assistant public defender who represented Carlson in his direct appeal.                                                                                        The North   



Carolina attorney had seen this Court's decision on a national blog, and he volunteered                                                                       



to represent Carlson in a petition for writ of certiorari to the United States Supreme Court                                                                               

raising a     Blakely  sentencing issue.                                 11  



                                                                                                                                                                  

                            Carlson'spublicdefender assistedtheNorthCarolinaattorneyincontacting  



                                                                                                                                                                         

Carlson and having the North Carolina attorney take over the representation. But neither  



                                                                                                                                                                                

the public defender nor the North Carolina attorney advised Carlson that he had only one  



                                                                                                                                                                 

year to seek post-conviction relief in state court if he wanted to raise claims of ineffective  



                                                                                                                                                  12  

                                                                                                                                                                                  

assistance of counsel against Dayan or against his appellate attorney.                                                                                 In addition, no  



                                                                                                                                                                         

one advised Carlson that the federal litigation with the North Carolina attorney would  



                          

not toll this deadline.  



                                                                                                                                                                                  

                            The United States Supreme Court denied Carlson's petition for writ of  



                                                                                                                                                                            

certiorari in October 2006.  The North Carolina attorney then assisted Carlson in filing  



                                                                                                                                                                            

a petition for writ of habeas corpus in the federal district court, attempting to raise  



                                                                                                                                                                              

ineffective assistance of counsel claims that could only be raised if Carlson had first  



                                                                                                                            13  

                                                                                                                                                                          

exhausted his post-conviction relief remedies in state court.                                                                     A federal assistant public  



                                                                                                                                                                      

defender was appointed to represent Carlson in his federal habeas petition. That attorney  



                                                                                                                                                                                

requested   that the federal district court stay the proceedings until Carlson had the  



                                                                                                                                                                             

opportunity toexhaust his statepost-conviction reliefremedies. Thefederal district court  



                           

granted this request.  



       11     See Blakely v. Washington, 542 U.S. 296 (2004).  



       12     See AS 12.72.020(a)(3)(A).  



       13     See 28 U.S.C.  2254(b)(1)(A).  



                                                                                     -  17 -                                                                                2641
  


----------------------- Page 18-----------------------

                                 Carlson's application for post-conviction relief                                                      



                                 On December 10, 2007 - six and one-half months after the statutory                                                                                         



deadlinefor seeking post-conviction relief -Carlsonfiled aprosepost-convictionrelief                                                                                                                  



application in the superior court, raising various claims of ineffective assistance of                                                                                                                      



counsel against Dayan.                                    The superior court appointed counsel to represent Carlson and                                                                                   



to address thelatefiling                                 of the application. Carlson'spost-conviction                                                               reliefattorney                     filed  



a motion to accept the late-filed application, arguing that the delay had been caused by                                                                                                                    



                                                                                                                                                                        14  

ineffective assistance of Carlson's state and federal appellate counsel.                                                                                                                             

                                                                                                                                                                              Superior Court  



                                                                                                                                                                                                             

Judge  Jack  Smith  granted  this  motion  over  the  State's  objection.                                                                                                    (This  ruling  is  



                                                                                                                                                                                                                

challenged on appeal and discussed later in our opinion.)  The case then proceeded to a  



                                                                                                                                                                         

litigation of the merits of Carlson's underlying post-conviction relief claims.  



                                                                                                                                                                                                      

                                 In his amended application for post-conviction relief, Carlson raised three  



                                                                                                                                                                 15  

                                                                                                                                                

primary claims of ineffective assistance of counsel against Dayan. 



         14     See Alex v. State, 210 P.3d 1225, 1228 (Alaska App. 2009) (suggesting that the statute  



                                                                                                                                                                                      

of limitations could be equitably tolled in cases where the applicant mistakenly attempted to  

                                                                                                                                                      

pursue his claim in another forum due to ineffective assistance of counsel); see also Holland  

                                                                                                                                                                

v. Florida, 560 U.S. 631, 652 (2010) (recognizing that the statute of limitations for federal  

                                                                                                                                             

habeas corpus claims may be equitably extended to remedy the egregious performance of  

appointed counsel that contributed to the missed deadline).  



         15     Carlson also raised ineffective assistance of counsel claims against his state appellate  

                                                                                                                      

attorney, assistant public defender Paul Malin.  Carlson alleged specifically that Malin was  

                                                                                                                                                                                

ineffective for failing to challenge the trial judge's  denial of Carlson's post-trial pro se  

                                                                                                                                                    

motion  requesting  that  Dayan  withdraw  and  the  Alaska  Public  Defender  Agency  be  

                                                                                                                                                                                                            

appointed for sentencing.  Cf. Peterson v. State, 1985 WL 1077992, at *2 (Alaska App. Mar.  

                                                                     

6, 1985) (unpublished) ("[A] party retaining counsel may fire his attorney and retain new  

                                                                                                                                                                                

counsel at will, so long as substitution of counsel does not substantially prejudice the state.").  

                                                                                                                                                                   

On appeal, Carlson concedes that he abandoned this claim during the post-conviction relief  

                                                                                                                                        

proceedings.  



                                                                                                  -  18 -                                                                                             2641
  


----------------------- Page 19-----------------------

                                        In his first claim, Carlson alleged that Dayan was ineffective for advising                                                                                                                    



Carlson to participate in the videotaped November 10 interview with the police without                                                                                                                                                   



any guarantees of confidentiality or promises of leniency in place.                                                                                                                                            This claim was                      



dismissed by Judge Smith on the ground that November 10 interview occurred before                                                                                                                               



formal charges were filed, and the Sixth Amendment right to effective assistance of                                                                                                                                                                      



                                                                                                                                                                                       16  

counsel does not attach until criminal charges have been filed.                                                                                                                                                                               

                                                                                                                                                                                               Carlson has not cross- 



                                                                                                                                                                                                                               

appealed the dismissal of this claim, and it is therefore not before us in this appeal.  



                                                                                                                                                                                                                                             

                                        In his second claim, Carlson alleged that Dayan was ineffective for failing  



                                                                                                                                                                                                                                                    

to withdraw from his case once it became clear that Carlson intended to testify at trial  



                                                                                                                                                                                                                                      

that B shot Featherly, and that Carlson intended to repudiate the accidental shooting  



                                                                                                                                                                                                                                         

confession that Dayan had participated in and previously promoted as the truth. Carlson  



                                                                                                                                                                                                                                

argued that any competent attorney under these circumstances would have withdrawn  



                                                                                                                                                                                                                                  

from his case or, at the very least, would have moved for a protective order to prevent  



          16        See, e.g.,  Philmore v. McNeil, 575 F.3d 1251, 1258-59 (11th Cir. 2009) (holding that   



Sixth Amendment right to counsel had not attached at the time defendant made his statements  

to the police because there had been no formal charge, preliminary hearing, indictment, or   

arraignment); United States v. Edelmann, 458 F.3d 791, 804 (8th Cir. 2006) (same); Sweeney  

v. Carter, 361 F.3d 327, 333-34 (7th Cir. 2004) (same); People v. Claudio                                                                                                                                      , 629 N.E.2d 384,  

385 (N.Y. 1993) (holding that, "except in most unusual circumstances," the state is not   

charged with responsibility of                                                           guaranteeing effective   legal representation upon entry of   

counsel at preaccusatory, investigatorystage of a criminal matter,                                                                                                                   i.e., before commencement  

of formal adversarial judicial criminal proceedings).  But see McNeil, 575 F.3d at 1265-75  

(Tjoflat, J., concurring) (explaining that defendant had no Sixth Amendment claim based on   

defense attorney's incompetent advice prior to initial charges being filed but defendant might  

have had due process claim under the Fifth Amendment);                                                                                                                  United States v. Wilson, 719 F.  

Supp. 2d 1260, 1267 (D. Or. 2010) (concluding that defendant's precharge plea negotiations  

were a "critical stage" of the criminal process for purposes of Sixth Amendment because                                                                                            

prosecution had already committed to prosecution and parties' adverse positions had already   

solidified).  



                                                                                                                       -  19 -                                                                                                                  2641
  


----------------------- Page 20-----------------------

the jury from learning about the attorney's involvement in the earlier, now-repudiated  

                                                                                                 



confession.  



                    Lastly, Carlson alleged that Dayan's involvement in the November 10  

                                                                                                                                



interview constituted an "actual conflict of interest" that adversely affected Dayan's  

                                                                                                                       



performance at trial and which required the court to presume prejudice and reverse  

                                                                                                                         



Carlson's convictions.  

                 



                    Carlson's case proceeded to a three-day evidentiary hearing on the latter  

                                                                                                                             



two claims, which was held in front of Superior Court Judge Frank A. Pfiffner.  

                                                                                                             



                    At this evidentiary hearing, Carlson presented an expert witness, long-time  

                                                                                                                      



criminal defense attorney, John Murtagh.  Murtagh testified that, in his opinion, Dayan  

                                                                                                                           



acted  incompetently  in  failing  to  either  withdraw  or  move  for  a  protective  order.  

                                                                                                                                      



Murtagh  acknowledged,  however,  that  trying  to  redact  all  indications  of  Dayan's  

                                                                                                                       



presence from the November 10 videotape would be "an elaborate project" - a project  

                                                                                                                           



that  Murtagh  did  not  think  "would  work  well"  or  provide  "a  complete  solution."  

                                                                                                                                      



Murtagh  therefore  testified  that  he  felt  "very  strongly"  that  Dayan  should  have  

                                                                                                                            



withdrawn as Carlson's trial counsel.   According to Murtagh, if Carlson had had a  

                                                                                                                                  



different trial attorney - one who "challeng[ed] the entire procedure of the [November  

                                                                                                                   



10] interview" and "develop[ed] in some exquisite detail Mr. Carlson's psychological  

                                                                                         



mental  state,"  this  would  have  made  it  a  "completely  different  trial."                                      Murtagh  

                                                                                                                      



acknowledged, however, that Carlson's multiple lies and shifting narratives would have  

                                                                                                                              



made this a difficult case for any attorney.  

                                                    



                    For his part, Dayan actively defended his decision to continue representing  

                                                                                                                  



Carlson at his two trials.  According to Dayan, it was "nonsense" to claim that Carlson  

                                                                                                                         



had been coerced into falsely confessing to accidentally shooting Featherly, either by  

                                                                                                                                 



Dayan or anyone else.  In Dayan's view, Carlson's demeanor during the videotaped  

                                                                                                                   



                                                             - 20 -                                                         2641
  


----------------------- Page 21-----------------------

confession belied such a claim:  "You can tell he's not being pressured to lie there.  It  

                                                                                                                                  



sounds like he's telling the truth."  

                                           



                    Dayan testified that, after watching the videotaped interview again, he was  

                                                                                                                               



reminded of the reasons why, at the time, he believed that the accidental discharge story  

                                                                                                                             



was the truth.  He further indicated that, sitting there at the evidentiary hearing, he still  

                                                                                                                               



believed  that  the  accidental  discharge  story  probably  was  the  truth.                                     Dayan  also  

                                                                                                                              



expressed optimism about the result he could have obtained for Carlson if Carlson had  

                                                                                                                               



not reverted to the B story.  

                                 



                    Dayan disagreed with Murtagh's criticisms of his performance.   Dayan  

                                                                                                                          



testified that he had zealously and competently represented Carlson and he did not  

                                                                                                                                



believe that Carlson was prejudiced by his representation at the two trials.  Dayan also  

                                                                                                                               



suggested that he shared Murtagh's view that any attorney would have had difficulty  

                                                                                                                       



representing Carlson, given Carlson's many lies and shifting stories, which (according  

                                                                                                                    



to Dayan) continued to shift in small ways up until the first trial.  

                                                                                            



                    Following thisevidentiary hearing, the superior court issuedatwenty-eight  

                                                                                                                  



page written order. In this order, the court granted post-conviction relief to Carlson and  

                                                                                                                                



vacated his convictions for second-degree murder, weapons misconduct, and evidence  

                                                                                                                       



tampering from the second trial.  

                                           



                    First, the superior court concluded that Dayan's active participation in the  

                                                                                                                                



November 10 videotaped interview created an "actual conflict of interest" that gave rise  

                                                                                                                                



to  a  "non-rebuttable"  presumption  of  prejudice  that  required  the  court  to  reverse  

                                                                                                                         



Carlson's convictions.  Specifically, the court found that, because of Dayan's involve- 

                                                                                                                        



ment in this interview, he became an "actual witness" in Carlson's case for purposes of  

                                                                                                                                  



Alaska Rule of Professional Conduct 3.7(a), and that Dayan's actions and statements  

                                                                                                              



during the videotaped interview were tantamount to "testifying" against his client in  

                                                                                                                                  



violation of that rule.  

                          



                                                              - 21 -                                                         2641
  


----------------------- Page 22-----------------------

                                               Second, the court concluded that Dayan rendered ineffective assistance of                                                                                                                                                                             



counsel when he failed to either withdraw from the case or at least to seek a protective                                                                                                                                                                              



order that would prevent the jury from learning of his involvement in the November 10                                                                                                                                                                                                              



videotaped .     The court found specifically that, had Dayan moved for a protective order,                                                                                                                                                                                            



the motion would have been granted, and that this was "the minimum required for                                                                                                                                                                                                                  



Carlson   to   have received                                                                a fair                 trial."     The   court also                                                       concluded that Dayan                                                              acted  



incompetently by failing to recognize that his presence at trial undermined Carlson's                                                                                                                                                                                    



credibility and the credibility of the B defense.                                                                                                                    The court faulted Dayan for failing to                                                                



take adequate steps to try to discredit the November 10 confession as a false and coerced                                                                                                                                                                                        



confession, and the court concluded that a different attorney - one who was not directly                                                                                                                                                                                          



involved in the now-repudiated confession - would have been better situated to make                                                                                                                                                                                                      



such an attack.             



                                              Although the court's order is twenty-eight pages long, the court spent only                                                                                                                                                                    



a page and a half on the prejudice prong of Carlson's ineffective assistance of counsel   



                      17  

claim.                                                                                                                                                                                                                                                                             

                              The court's analysis of the question of prejudice ultimately turned on its finding  



                                                                                                                                                                                                                                                                                   

that a protective order would have been granted if one had been requested, and its finding  



                                                                                                                                                                                                                                                                        

that the jury at Carlson's first trial "did not see or hear" the November 10 interview,  



                                                                                                                                                                                                                                                                        

while the jury at the second trial saw the videotape of that interview and thus essentially  



                                                                                                                                                                                                                                                                                                 

"saw Dayan refute his [own] theory of the case."  Based on these findings about the  



                                                                                                                                                                                                                                                                                               

differences between the two trials, the court concluded that "there is a possibility that  



                                                                                                                                                                                                                                

Dayan's support for the accident version and repudiation of the Bee version ... was an  



                                                                                                                                                   

influential factor in the jurors' decision to convict."  



            17         To  prove  an  ineffective  assistance  of   counsel  claim   under  the  federal  and  state  



constitutions, a defendant must prove both incompetence and prejudice.                                                                                                                                                                             See Strickland v.  

 Washington, 466 U.S. 668, 693 (1984); Risher v. State, 523 P.2d 421, 425 (Alaska 1974).  



                                                                                                                                            - 22 -                                                                                                                                        2641
  


----------------------- Page 23-----------------------

                               In addition to these rulings on Carlson's two main post-conviction relief                                              



claims, the superior court also made two other rulings that are challenged on appeal.                                                                                                                      



First, the court rejected the State's argument that Carlson was barred as a matter of law                                                                                                       



from raising any claims of ineffective assistance of counsel against Dayan based on our                                                                                                          



                                                                         18  

                                                                                                                                                                                    

prior decision in                      Arnett v. State                 .       Second, the court found that Carlson's state appellate  



                                                                                                                                                                                            

attorney was ineffective for failing to raise an ineffective assistance of counsel claim  



                                                                                                                                                                                                

against Dayan in Carlson's direct appeal.  (As already noted, Carlson concedes that this  



                                    

last ruling was error.)  



                                                                             

                The State's arguments on appeal  



                                                                                                                                                                                             

                               The State raises multiple claims of error on appeal.  Specifically, the State  



                                                                                                                                                                                                  

argues:  (1) the superior court erred when it granted Carlson's motion to proceed on the  



                                                                                                                                                                                                     

merits despite the late filing of the application; (2) the superior court erred when it  



                                                                                                                                                                                       

rejected the State's argument that, under this Court's decision in Arnett v. State , Carlson  



                                                                                                                                                                                       

was barred from raising any ineffective assistance of counsel claims against Dayan;  



                                                                                                                                                                                                   

(3) the superior court's decision to grant post-conviction relief to Carlson was based on  



                                                                                                                                                                                                 

clearly  erroneous  findings  regarding  the  difference  between  the  two  trials;  (4)  the  



                                                                                                                                                                                       

superior court erred when it granted post-conviction relief to Carlson without finding  



                                                                                                                                                                                      

case-specific prejudice to Carlson arising from Dayan's purported conflict of interest;  



                                                                                                                                                                 

and (5) the superior court erred when it found that Dayan violated the advocate-witness  



rule.  



                                                                                                       

                               We now address each of these claims.  



        18     Arnett v. State , 938 P.2d 1079 (Alaska App. 1997).  



                                                                                             - 23 -                                                                                         2641
  


----------------------- Page 24-----------------------

            A.   The superior court's timeliness ruling                    



                        As   already   mentioned,   Carlson's   original   pro   se   application   for   post- 



conviction relief was filed approximately six and one-half months after the statutory                                                     



                19  

                                                                                                                                          

deadline.           Carlson's post-conviction attorney argued that this delay should be excused,  



                                                                                                                                         

alleging  that  Carlson  received  ineffective  assistance  of  counsel  from  his  appellate  



                                                                                                                                                

attorneys because neither of them warned Carlson of the post-conviction relief filing  



                                                                                                                                                      20  

                                                                                                                                      

deadline or that this deadline would not be tolled by the intervening federal litigation. 



                                                                                                                                                    

                        To support his claim, Carlson provided affidavits from Paul Malin, the  



                                                                                                                                              

assistant  public  defender  who  represented  Carlson  in  his  direct  appeal,  and  Bruce  



                                                                                                                                                    

Cunningham, the pro bono North Carolina attorney who represented Carlson in his  



                                                                                                                                           

petition for writ of certiorari to the United States Supreme Court and who assisted  



                                                                                                                                             

Carlson in filing his procedurally deficient petition for writ of habeas corpus in federal  



              

district court.  



                                                                                                                                         

                        In  his  affidavit,  Malin  asserted  that  he  believed  that  he  had  provided  



                                                                                                                                                   

ineffective  assistance  of  counsel  to  Carlson  because  "[i]t  would  be  reasonable  for  



      19    Under AS 12.72.020, a defendant who unsuccessfully appeals his conviction has one   



year  from   the  date  on  which  the  appeal  becomes  final  to  file  an  application  for  post- 

conviction relief.  See AS 12.72.020(a)(3)(A).  



      20    Although Carlson argues on appeal that he did not raise a claim of equitable tolling  

                                                                                                                         

based on the ineffective assistance of his appellate counsel, we conclude that Carlson's  

                                                                   

claims necessarily encompassed the same fundamental due process principles as equitable  

                                 

tolling.   See Alex v. State, 210 P.3d 1225, 1228 (Alaska App. 2009) (suggesting that the  

                                                                                                                                                    

statute  of  limitations  could  be  equitably tolled  in  cases  where  the  applicant  mistakenly  

                                                                        

attempted to pursue his claim in another forum due to ineffective assistance of counsel); see  

                                                                                                                                    

also Holland v. Florida, 560 U.S. 631, 649, 652 (2010) (holding that the statute of limitations  

                                                                                                                                        

for  federal  habeas  corpus  claims  may  be  equitably  extended  to  remedy  the  egregious  

                                                                                                                                 

performance of appointed counsel that contributed to the missed deadline).  

                            



                                                                       - 24 -                                                                   2641
  


----------------------- Page 25-----------------------

[Carlson] to think that, as long as he was actively pursuing relief in the federal courts,  



his state post-conviction relief options would not be harmed."  

                                                                                 



                    Unlike Malin, Cunningham did not directly state that he had provided  

                                                                                                                      



ineffective assistance of counsel.  However, he admitted in his affidavit that he never  

                                                                                                                           



discussed state post-conviction relief remedies with Carlson, and he also admitted that  

                                                                                              



he  was  "not  aware  of  Alaska's  statute  of  limitations  regarding  PCR  applications  

                                                                                                                



[because] in North Carolina we do not have a statute of limitations for post-conviction  

                                                                                                            



relief."  



                    In response to these affidavits and the legal memorandum filed in support  

                                                                                                                        



of Carlson's motion, the State filed a two-page opposition.  In that opposition, the State  

                                                                                                                            



argued that Carlson's application should be dismissed as time-barred.  However, the  

                                                                                                                               



State did not challenge any of the legal or factual assertions made in Carlson's pleadings.  

                                                                                                                                     



Instead,  the State argued  only that the pleadings showed  that  Carlson  had  been  in  

                                                                                                                                



communication with his attorneys and that he had made "a choice ... in consultation with  

                                                                                                                             



his attorneys" to forgo his state post-conviction relief remedies, "presumably because he  

                                                                                                                                



thought his chances for success were stronger in the federal system."  

                                                                                            



                    Carlson then filed a pleading asserting that he made no such choice; he also  

                                                                                                                              



pointed out that it would be incompetent for an attorney to advise a defendant to skip  

                                                                                                                         



litigating his post-conviction relief claims in state court when the availability of federal  

                                                                                                                         



habeas review is directly contingent on a defendant having exhausted his state post- 

                                                                                                                            

conviction relief remedies.21  

                           



                                                                                                                              

                    Neither party requested an evidentiary hearing or oral argument on this  



                                                                                                                             

timeliness determination. Instead, thematter wassubmittedtoSuperior Court JudgeJack  



                                                                                                                   

Smith based solely on the arguments and assertions made in the pleadings.  



     21   See 28 U.S.C.  2254(b)(1)(A).  



                                                             - 25 -                                                        2641
  


----------------------- Page 26-----------------------

                                            Judge Smith subsequently issued an oral ruling granting Carlson's motion                                                                                                                                                    



to proceed.                            In his ruling, Judge Smith excused Cunningham's failure to inform Carlson                                                                                                                                                     



of the state post-conviction deadline, apparently concluding that Cunningham could not                                                                                                                                                                                               



be expected to know the post-conviction relief procedures of a state in which he was not                                                                                                                                                                                            



licensed.   However, Judge Smith concluded that, under the circumstances, Malin was                                                                                                                                                                                              



ineffective for                                   failing to                         advise Carlson                                        of   the   statutory   deadline for                                                                  seeking   post- 



conviction relief.                                         After Judge Smith issued this ruling, the parties proceeded to litigate                                                                                                                                      



the merits of Carlson's ineffective assistance of counsel claims against Dayan.                                                                                                                                                             



                                            The State challenges Judge Smith's ruling on appeal, but the State relies on                                                                                                                                                               



arguments that were never raised in the proceedings below.                                                                                                                                            The State also violated the                                                    



                                                                                                                                                                                                                                       22  

appellate rules by failing to have Judge Smith's oral ruling transcribed.                                                                                                                                                                                  

                                                                                                                                                                                                                                               An appellant's  



                                                                                                                                                                                                                                                                                       

failure to designate the portions of the record that are necessary for deciding a claim on  



                                                                                                                                                                                                          23  

                                                                                                                                                                                                                 

appeal can constitute a waiver or abandonment of that claim.                                                                                                                                                       



                                            The   timeliness   of   a   post-conviction   relief   application   is   a   threshold  



determination that must be made before the court undertakes litigation of the merits of                                                                                                                                                                                                 



           22         Alaska   Appellate   Rule   210(b)(1)(A)   requires   the   appellant   to   designate   for  



transcription "all parts [of the record] which are essential to a determination of the issues on  

                                                                                                                                                                                                                                                       

appeal."  The rule further provides that "if appellant claims that the written findings of fact  

                                                                                                                                                                                                                                                                                   

or conclusions of law are insufficient or erroneous, the designation shall include any oral  

                                                                                                                                                                                                                                                                                  

findings of fact and conclusions of law."  Id.  

                                                                                                                                                



           23         See Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003); see also Miscovich v.  

                                                                                                                                                                                                                                                       

 Tryck, 875 P.2d 1293, 1304 (Alaska 1994) ("It is well established that a party's failure to  

                                                                                                                                                                                                                                                                  

designate portions of the record that are necessary to allow the determination of a point on  

appeal will amount to a waiver or abandonment of that point.");  Jackson v. State , 31 P.3d  

                                                                                                                                                                                                               

 105, 110 (Alaska App. 2001) (noting that a party's failure to designate a record to support  

the party's claims justifies a reviewing court in deciding those claims against the party)  

                                                                                                                                                                                                                                      

(internal citations omitted).  



                                                                                                                                      - 26 -                                                                                                                                  2641
  


----------------------- Page 27-----------------------

                                                                                 24  

the defendant's post-conviction relief claims.                                        Under Alaska Civil Rule 8(c), a statute                    



                                                                                                                   25  

of limitations defense must be pleaded as an affirmative defense.                                                                                    

                                                                                                                       Failure to do so may  



                                                              26  

                                                                                                                                                         

constitute a waiver of this defense.                               (Federal habeas corpus law is similar:  a statute of  

                                                                                                          27)  

limitations defense is not jurisdictional and can be waived. 



                                                                                                                                                      

                        In Carlson's case, the prosecutor cursorily raised the timeliness issue and  



                                                                                                                                                              

arguedthat Carlson's post-conviction reliefapplicationshouldberejectedastime-barred.  



                                                                                                                                           

But the prosecutor otherwise accepted all of the factual assertions contained in Carlson's  



                                                                                                                                                        

motion, and she never challenged the legal framework that Carlson put forward to  



                                                                                                                                                    

explain the tardiness of the application.  The prosecutor also failed to challenge or seek  



                                                                                                                                                

clarification of the aspects of the court's ruling that the State now challenges on appeal.  



                                                                                                                                                     

                        Given the cursory manner in which the statute of limitations issue was  



                                                                                                                                                        

litigated by the State in the superior court, and given the reasonable inferences to be  



                                                                                                                                                      

drawn from the uncontested facts alleged by Carlson in his pleadings, we conclude that  



                                                                                                                                         

the superior court did not err when it granted Carlson's motion to accept his application  



                                                                                                           

as timely and to proceed to litigation of his claims on their merits.  



                                                                                                                                      

                        In reaching this conclusion, we make two additional points.  



      24    See Holden v. State, 172 P.3d 815, 818 (Alaska App. 2007); Alex , 210 P.3d at 1229.   



      25  

                                                                                                                                            

            Alaska Rule of Civil Procedure 8(c) is applicable to post-conviction relief litigation.  

                                                                 

See  Alaska Criminal  Rule 35.1(g).   Under Civil Rule 8(c), a defendant must "set forth  

affirmatively" its affirmative defenses.  



      26    See Morrow v. New Moon Homes, Inc., 548 P.2d 279, 295 (Alaska 1976); cf. Barrett  



                                                                                                                                                      

v. Byrnes, 556 P.2d 1254, 1254-55 (Alaska 1976) (failure to file responsive pleadings can  

                                  

result in waiver of statute of limitations defense).   



      27    See Day v. McDonough, 547 U.S. 198, 208-10 (2006).   



                                                                         - 27 -                                                                    2641
  


----------------------- Page 28-----------------------

                                                    First, we agree with the State that Alaska law is unsettled with regard to the                                                                                                                                                                                                      



question of whether an appellate attorney has a duty to inform a client of the statute of                                                                                                                                                                                                                                                  



limitations governing any potential future post-conviction relief application.                                                                                                                                                                               



                                                     In   Roe v. Flores-Ortega                                                                          ,  the United States Supreme Court held that a                                                                                                                                       



defendant's failure to meet a filing deadline for a direct appeal could be excused, based                                                                                                                                                                                                                                    



on ineffective assistance of counsel, if the defendant can show (1) that the defendant's                                                                                                                                                                                                             



attorney unreasonably failed to consult with the defendant about the possibility of an                                                                                                                                                                                                                                                   



appeal, and (2) that, but for the defense attorney's unreasonable failure to consult with                                                                                                                                                                                                                                        

the defendant about an appeal, the defendant would have filed a timely appeal.                                                                                                                                                                                                                                       28  



                                                                                                                                29  

                                                                                                                                                                                                                                                                                                                              

                                                     In Harvey v. State,                                                                 we adopted the Flores-Ortega test to define a trial  



                                                                                                                                                                                                                                                                                                             30  

                                                                                                                                                                                                                                                                                                                                        

attorney's duty to consult with a client regarding the client's appellate rights.                                                                                                                                                                                                                                       But we  



                                                                                                                                                                                                                                                                                                                                            

have not held that an attorney who represents a defendant on direct appeal has a duty to  



                                                                                                                                                                                                                                                                              

consult with the defendant regarding potential post-conviction relief remedies.  



             28           Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000).  



             29           Harvey v. State, 285 P.3d 295, 305 (Alaska App. 2012).  



             30           See Harvey                                  , 285 P.3d at 305, where we held that a trial attorney acts incompetently   



when the attorney "fails to engage in meaningful discussions with the defendant about the   

possibility of an appeal in either of two situations: (1) when the defendant has given the                                               

attorney a reasonable indication that they are interested in appealing, or (2) when there are  

objective reasons to think that a rational person in the defendant's position might want to   

appeal."  See also Wassilie v. State, 331 P.3d 1285, 1288 (Alaska App. 2014).  

                          We have also found the Flores-Ortega  test applicable in a situation where a trial  

                                                                                                                                                                                                                                                              

attorney failed to file for judicial review of an administrative decision.                                                                                                                                                                                                   See Frank v. State,  

2009 WL 349791, at *2 (Alaska App. Feb. 11, 2009) (unpublished); see also Basargin v.  

State, 2006 WL 3334018, at *1-2 (Alaska App. Nov. 15, 2006) (unpublished) (suggesting                        

that Flores-Ortega  may be applicable in a situation where defendant hired an attorney to file                                                                                                                                                                                                                                

an application for post-conviction relief).  



                                                                                                                                                               - 28 -                                                                                                                                                          2641
  


----------------------- Page 29-----------------------

                       In   Wassilie v. State             , we extended this duty to attorneys who represent a                                        



defendant in an application for post-conviction relief in the trial court, and who file a                                                             



                                                                                              31  

certificate of no merit as to the defendant's claims.                                                                                               

                                                                                                    In  Wassilie, we held that an  



                                                                                                                                                

attorney  who  files  a  certificate  of  no  merit  has  an  obligation  "to  ascertain  [the  



                                                                                                                                                     

defendant's] desires regarding a potential appeal, and to take the steps necessary to  



                                                                                                                                 32  

                                                                                                                          

preserve [the] right of appeal if that is what [the applicant] wishes to do." 



                                                                                                                                        

                        On appeal, Carlson argues that this same duty should extend to attorneys  



                                                                                            

who represent defendants on direct appeal and who are aware, through their review of  



                                                                                                                                     

the  record  on  appeal  and  conversations  with  their  clients,  of  potential  ineffective  



                                                                                                                                                 

assistance of counsel claims that the defendant cannot bring on direct appeal but may  



                                                                                                                                             

wish to pursue in an application for post-conviction relief.  For its part, the State argues  



                                                                                                                                                   

that no such duty should apply because ineffective assistance of counsel claims are  



                                                                                                    33  

                                                                                         

normally wholly collateral to a defendant's direct appeal. 



                                                                                                                                                 

                       We conclude that we need not reach the question of what duty, if any,  



                                                                                                                                          

appellate attorneys owe their clients with regard to ineffective assistance of counsel  



                                                                                     

claims or other post-conviction relief remedies.  We reach this conclusion because we  



                                                                                                                        

do not read the superior court's ruling as broadly as the State does.  



                                                                                                                            

                       The State asserts that Judge Smith's ruling "rests on the assumption that  



                                                                                                                                  

counsel on direct appeal has an affirmative duty to expressly inform an unsuccessful  



      31    Wassilie, 331 P.3d at 1288.  



      32    Id. ; see also Alaska R. Prof. Conduct 1.2(a) & 1.16.  



      33    The State also argues that there is nothing in the record to suggest that Carlson ever  



                                                                                                                                         

asked Malin about raising ineffective assistance of counsel claims against Dayan.  The State  

is correct that the record is silent on this issue, and that this issue was never litigated in the  

                                                                                                                

superior court.  But Malin presumably would have been aware of Carlson's pro se motion  

                                                              

alleging that Dayan was ineffective. This motion was filed prior to Carlson's sentencing, and  

it was therefore part of the record on appeal.  



                                                                       - 29 -                                                                  2641
  


----------------------- Page 30-----------------------

appellant of the deadline to file a post-conviction application."                                                                                                    We do not read the                          



court's ruling this way.                                    Instead, we view the court's ruling as grounded in the specific                                                                          



circumstances presented here - circumstances that involved a highly unusual turn of                                                                                                                                 



events where a state appellate attorney essentially handed off his client to a pro bono out-                                                                                                                   



of-state attorney who was unfamiliar with Alaska's post-conviction relief procedures                                                                                                         



(and apparently also unfamiliar with the "exhaustion of state remedies" requirement for                                                                                                                           



federal habeas relief).                                 We also note that, unlike the cases cited by the State in its brief,                                                                                



Carlson remained represented by the same out-of-state attorney even after his direct                                                                                                                      



                                         34  

appeal was over.                                                                                                                                                                                                

                                               Thus, unlike the defendants in the other cases, Carlson potentially had  



                                                                                                                                                                                                                   

good reason to believe that his post-conviction relief rights were being safeguarded by  



                                                                                                 35  

                                                            

his attorney during this representation. 



                                                                                                                                                                                                 

                                  In sum, we view the superior court's ruling on the timeliness of Carlson's  



                                                                                                                                                                                                                   

post-conviction relief application as limited to the unusual circumstances presented by  



                                                                                                                                                                                                                  

Carlson's case.  We also conclude that our review of that ruling should be limited to the  



                                                                                                                                                                                                                    

issues actually raised and litigated in the superior court.  Given the State's failure to  



         34      See Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002) (appellate attorney  



misadvised client of deadline for habeas petition in letter ending her representation of him);  

                                                                                                                                                                                                             

Summers v. Patrick, 535 F. Supp. 2d 995, 999 (C.D. Cal. 2008) (defendant failed to comply  

with statutory time limits due to "not having [an] attorney"); Noyakuk v. State, 2011 WL  

                                   

3249583 (Alaska App. July 27, 2011) (unpublished) (defendant petitioned for habeas one  

                                                                                                                                

year after his appellate attorney had ended his representation); People v. Alexander, 129 P.3d  

                                                                                                                                                                                                     

 1051, 1056 (Colo. App. 2005) (stating that "lack of legal assistance does not excuse the late  

                                                                                                                           

filing of a [post-conviction relief] motion"); Bartz v. State, 839 P.2d 217, 226-27 (Or. 1992)  

                     

(defendant untimely filed for post-conviction relief after having declined direct appeal, so  

                                                                                                                             

had no appellate attorney).  



         35      See Alex, 210 P.3d at 1228 (suggesting that when a person is represented, they may  

                                                                                                                                                                                                               

reasonably rely on their attorney to take care of legal decisions and may have an argument  

                                                                                                                                                                              

for equitable tolling when deadlines are missed).  



                                                                                                     -  30 -                                                                                                2641
  


----------------------- Page 31-----------------------

preserve the various challenges it now raises on appeal, we reject the State's argument                                                                       



that Carlson's post-conviction relief application should be dismissed as time barred.                                                                         



              B.  The superior court's Arnett ruling  

                                                                               



                           In Arnett v. State , weheld that a defendant who voluntarily commits acrime  

                                                                                                                                                                     



on the advice of counsel cannot later claim that the attorney's advice amounted to  

                                                                                                                                                                            



ineffective assistance of counsel - because, "in almost all such cases, the defendant's  

                                                                                                                                                         

own voluntary acts will be a superseding cause of any resulting misfortune."36  

                                                                                                                                   



                                                                                                                                                                  

                           The State argues that our decision in Arnett  bars Carlson from raising  



                                                                                                                                                       

ineffective assistance of counsel claims against Dayan as a matter of law.  Specifically,  



                                                                                                                                                              

the State argues that Carlson should be estopped from claiming that Dayan provided  



                                                                                                                                                           

ineffective assistance of counsel because it was Carlson's own conduct - repeatedly  



                                                                                                                                                                

lying to the police and potentially perjuring himself at trial - that gave rise to Dayan's  



                                                                   

alleged ineffective assistance of counsel.  



                                                                                                                                                                             

                           We are not persuaded by this argument. The rule in Arnett  is limited to  



                                                                                                                                    37  

                                                                                                                 

circumstances where an attorney and a defendant act in collusion.                                                                                                 

                                                                                                                                         It would be counter  



       36    Arnett v. State , 938 P.2d 1079, 1083 (Alaska App. 1997).                                                       As we explained in Arnett :  



                     We have no doubt that a lawyer who counsels a client to commit a   

                     crime for tactical gain acts incompetently.  But by the same token, this                                            

                     form   of   advice  falls  so  far  beyond  the  pale  of   anything  that  could  

                     conceivablybe considered legitimate legal assistance that a defendant's   

                     voluntary reliance                   on  it   is  tantamount  to  a  willing  abandonment  of  

                     competent representation.  

Id. ; see also Harding v. Lewis                            , 834 F.2d 853, 858-59 (9th Cir. 1987) (rejecting ineffective  

                                                                                                 

assistance of counsel claim based on involuntary self-representation when defendant, in an  

attempt to inject reversible error into the trial through self-representation, conspired with  

counsel to invent an excuse for discharging counsel in the midst of trial).  



       37     See, e.g., Prentzel v. State, 2009 WL 1361959, at *2-3 & n.3 (Alaska App. May 13,  



                                                                                                                                                      (continued...)  



                                                                                  -  31 -                                                                             2641
  


----------------------- Page 32-----------------------

to public policy to apply this rule to defendants who, on their own initiative, provide a                                                                                                                                                                                                                                                                                                                                                   



version of events at trial that contradicts what they earlier told the police.                                                                                                                                                                                                                                                                                                       Such a rule      



would effectively prevent defendants who claim they were pressured to falsely confess                                                                                                                                                                                                                                                                                                                       



 from challenging the effectiveness of their attorneys' litigation of this issue.                                                                                                                                                                                                                                                                               



                                                                   Here, Carlson's ineffective assistance of counsel claims against Dayan rest                                                                                                                                                                                                                                                                                   



primarily on Carlson's assertion that any competent attorney would have moved to                                                                                                                                                                                                                                                                                                                                                      



withdraw once Carlson made it clear that he intended to testify at trial and repudiate the                                                                                                                                                                                                                                                                                                                                         



November 10 confession that Dayan had helped facilitate and had previously promoted                                                                                                                                                                                                                                                                                                              



 as the truth.   Carlson does not claim that Dayan advised him to give a false confession                                                                                                                                                                                                                                                               



to the police. Nor has Carlson claimed that Dayan advised him to perjure himself at trial.                                                                                                                                                                                                                                                                                                                                                             



                                                                   Accordingly, we affirm the superior court's rejection of the State's                                                                                                                                                                                                                                                                           Arnett  



 argument, and we conclude that Carlson was not barred as a matter of law from raising                                                                                                                                                                                                                                                                                                                          



his claims of ineffective assistance of counsel against Dayan.                                                                                                                                                                                                                



                                   C.   The superior court's conflict analysis                                                                                                                        



                                                                    The superior court found that Carlson had proved, by clear and convincing                                                                                                                                                                                                                                              



 evidence,   that   Dayan   was   laboring   under   an   "actual   conflict   of   interest"   based   on  



Dayan's personal involvement in the later-repudiated November 10 confession.                                                                                                                                                                                                                                                                                                                                             The  



 superior court further found that this "conflict of interest" gave rise to a non-rebuttable                                                                                                                                                                                                                                                                       



presumption of prejudice - a presumption that required the court to reverse Carlson's                                                                                                                                                                                                                                                                                                            



                 37               (...continued)  



2009) (unpublished) (defendant barred from claiming ineffectiveness under Arnett  where  

                                         

 attorney advised defendant not to file an appeal in hopes that the superior court would forget  

                                                                                                                                                                                                                                                                                                                                                                   

that the defendant had been released on bail pending appeal); Nelson v. State, 2007 WL  

  1098411, at *7 (Alaska App. Apr. 11, 2007) (unpublished) (explaining that Arnett stands for  

                                                                                                                                                                                                                            

the proposition that a "defendant's complicity in [his trial attorney's] illegal act disqualified  

the defendant from obtaining post-conviction relief").  



                                                                                                                                                                                                           -  32 -                                                                                                                                                                                                       2641
  


----------------------- Page 33-----------------------

convictions from his second trial, even if Carlson could not show that there was at least                                                                                                    



a   reasonable   possibility   that   the   outcome   of   his   trial   would   have   been   different   if  



someone other than Dayan had been his attorney.                                               



                               On appeal, the State argues that the superior court's conflict analysis is                                                                                          



legally flawed.                       We agree with the State that the superior court's conflict analysis is                                                                                       



flawed, although we do not completely agree with the State's analysis of the relevant                                                                                                



law.  We therefore provide a brief history and overview of the applicable law in order                                                    



to ground our explanation of the errors in the superior court's reasoning and ultimate                                                                                              



findings.  



                               1.  Brief overview of the law on post-conviction conflict of  

                                                                                                                                                                    

                               interest claims  

                                                  



                               A  defendant's  right  to  effective  assistance  of  counsel  under  the  Sixth  

                                                                                                                                                                                           



Amendment has two components:  competent representation, and zealous, conflict-free  

                                                                                                                                                                           

representation.38  

                                                                                                                                                                                                   

                                         Because the right to conflict-free counsel is a subset of the right to  



                                                                                                                                                                                                     

effective assistance of counsel, a defendant who seeks post-conviction relief based on a  



                                                                                                                                                                                                   

claim that his attorney was laboring under a conflict of interest would typically need to  



                                                                                                                                                                                               

prove  both  prongs  of  an  ineffective  assistance  of  counsel  claim  -  including  the  



                                      39  

                       

prejudice prong. 



        38      Wood v. Georgia, 450 U.S. 261, 271 (1981).  



        39     See Newby v. State, 967 P.2d 1008, 1011-12 (Alaska App. 1998) (describing a conflict  



claim  as  a  subset  of  an  ineffective  assistance  of  counsel  claim);  see  also  Strickland  v.  

                                                                                                                                                                                                   

 Washington,  466  U.S.  668,  692  (1984)  (setting  forth  the  two-prong  test  for  ineffective  

                              

assistance of counsel under the federal constitution); Risher v. State,  523 P.2d 421, 425  

                                                                                                                                                              

(Alaska 1974) (setting forth the two-prong test for ineffective assistance of counsel under the  

                                                                                                                                                                  

Alaska constitution and requiring only a "reasonable possibility" of a different outcome  

                                                                                                                                                           

rather than the "reasonable probability" standard required under federal law).  



                                                                                             -  33 -                                                                                       2641
  


----------------------- Page 34-----------------------

                       In 1980, however, the United States                                 Supreme Court held in                       Cuyler v.   



Sullivan  that a defendant who could prove that his attorney was laboring under "an actual                                                    



conflict ofinterest[that]adversely                          affected his[attorney's]performance"wouldnothave                                     



the   additional   burden   of   proving   the   traditional   prejudice   prong   of   an   ineffective  



                                                40  

                                                                                                                                       

assistance of counsel claim.                         That is, the defendant would be relieved of the additional  



                                                                                                                                      

burden of showing that there was a reasonable probability that the outcome of his trial  



                                               41  

                                

would have been different. 



                                                                                                                                                     

                       The presumed prejudice aspect of Cuyler applies only to the question of  



                                                                                                                                                

whether  the  defendant's  trial  might  have  had  a  different  ultimate  outcome.                                                             The  



                                                                                                                                           

defendant  still  bears  the  burden  of  showing  that  the  attorney's  conflict  of  interest  



                                                                                                                                                  

prejudiced  him in  the sense that,  because of the attorney's  conflicting interest,  the  



                                                                                                                                                   

attorney took some action (or refrained from taking some action) that was contrary to the  



                                     42  

                                                                                                                                       

defendant's interests.                   As the United States Supreme Court later explained in Strickland  



                                                                                                                                          

v.  Washington, this presumption of prejudice as to the ultimate outcome was adopted  



                                                                                                                               

because "it is difficult to measure the precise effect on the defense of representation  



                                                             43  

                                            

corrupted by conflicting interests." 



      40    Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).  



      41    Id. ; see Strickland, 466 U.S. at 694.  



      42    See generally  3 Wayne R. LaFave et al., Criminal Procedure  11.9(d), at 1074 (4th  



ed. 2015) (explaining the Cuyler  decision and its rationale).  



      43  

                                                                                                                                                     

            Strickland, 466 U.S. at 692.   Professor LaFave explains the Court's reasoning as  

follows:  

                                                                                                                    

                  Once it is shown that counsel was adversely influenced by the conflict  

                                              

                  in one aspect of his performance, it would be inappropriate to measure  

                                                                              

                  the impact of that conflict solely by reference to that action or inaction.  

                  A court could not assume that counsel so motivated had not also been  

                                                                                                                                 (continued...)  



                                                                       -  34 -                                                                 2641
  


----------------------- Page 35-----------------------

                       The  Cuyler  standard is therefore different from the rule of per se reversal                        



                                                                                                                                   44  

that applies to situations where a defendant is deprived of counsel altogether.                                                        Instead,  



                                                                                                                                                

under  Cuyler, prejudice is presumed only if the defendant demonstrates that (1) the  



                                                                                                                                      

attorney  was  placed  in  a  situation  where  conflicting  loyalties  pointed  in  opposite  



                                                                                                                                                

directions (an "actual conflict"), and that, because of the conflicting loyalties, (2) the  



                                                                                                                                   

attorney acted against the defendant's interests (i.e., the conflict of interests "adversely  



                                               45  

                      

affected his performance"). 



                                                                                                                                                

                       In the years since  Cuyler was decided, disagreement has arisen in the  



                                                                                                                    

federal courts regarding whether the Cuyler standard applies to all alleged conflicts of  



                                                                                                                                               

interest or only to the types of conflicts that were primarily at issue in Cuyler - i.e.,  



                                                                                                                                                

conflicts of interest arising from the attorney's concurrent or joint representation of co- 



                                                                                                                                                  

defendants.  As a result of this disagreement, some federal circuit courts have refused to  



                                                                                                                                          

apply the Cuyler rule of presumed prejudice to conflict of interest claims that do not  



      43    (...continued)  



                 influenced by the conflict in various other aspects of his representation.  

                                                                                                       

                 It  was  at  this  point  that  an  assessment  of  prejudice  became  too  

                                                                                              

                 speculative.  

3 Wayne R. LaFave et al., Criminal Procedure  11.9(d), at 1074 (4th ed. 2015).  



      44  

                                                                         

           See Strickland, 466 U.S. at 692; see also LaPierre v. State, 734 P.2d 997, 1003-04  

                                                                                                                                         

(Alaska App. 1987) (rejecting defendant's argument that "reversal automatically follows  

                                         

upon a bare showing of conflict of interest").  



      45  

                                                                                                                                     

            Cuyler, 446 U.S. at 350; 3 Wayne R. LaFave et al., Criminal Procedure  11.9(d), at  

1074 (4th ed. 2015).  



                                                                     -  35 -                                                                2641
  


----------------------- Page 36-----------------------

                                                 46  

involve   joint   representation,                    while   other   federal  circuits   have   applied   the   Cuyler  

standard to a broader range of conflicts of interest.                               47  



                                                                                                                                            

                      The Alaska courts follow a slightly different conflict analysis than the  



                                                                                                                                         

federal courts.   In cases involving "egregious" conflicts of interest such as the joint  



                                                                                                                                    

representation of co-defendants presented in Cuyler, the Alaska courts apply a standard  



                                                                                                                                   

that was formulated  by the Alaska Supreme Court  in  its pre-Cuyler  1978  decision  



                            48  

                   

Moreau v. State. 



                                                                                                                      

                      Under the Moreau  standard, the trial court is required to affirmatively  



                                                                                                                                    

advise co-defendants who are jointly represented by the same attorney of the dangers  



      46   See, e.g., Beets v. Scott, 65 F.3d 1258, 1268-73 (5th Cir. 1995) (en banc) (rejecting   



extension of   Cuyler to breaches of loyalty pitted against an attorney's self-interest, and     

instead analyzing such claims under the Strickland test).  



      47   See, e.g., Summerlin v. Stewart, 267 F.3d 926, 935-41 (9th Cir. 2001) (analyzing  

                                                                 

romantic  "entanglement"  with  the  prosecutor  under  the  Cuyler  standard);  Freund  v.  

                                                                                                              

Butterworth, 165 F.3d 839, 858-60 (11th Cir. 1999) (analyzing obligation to a former client  

under Cuyler standard); Garcia v. Bunnell, 33 F.3d 1193, 1194-95, 1198, n.4 (9th Cir. 1994)  

                       

(holding  that  under   Cuyler  defendant  must  demonstrate  why  his  attorney's  future  

                                                                                                             

employment  with  the  prosecution  posed  an  actual  conflict  of  interest);  United  States  v.  

                                                                                                       

Young, 644 F.2d 1008, 1013 (4th Cir. 1981) (applying Cuyler to successive representation  

of co-defendants); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980) (holding that  

     

attorney's book contract justified a hearing and application of Cuyler to the defendant's claim  

                                                                                                             

of conflict of interest). Although the United States Supreme Court has not directly answered  

                                                                                                                                   

the question of how broadly Cuyler was intended to apply, dicta in Mickens v. Taylor , a 2002  

                                                                                             

decision, suggests that the Cuyler standard may not have been intended to apply as broadly  

                                                                                                                                 

as some federal courts have assumed.  See Mickens v. Taylor, 535 U.S. 162, 175-76 (2002)  

                                                               

(explaining in dicta that it was an open question under the Court's jurisprudence whether  

Cuyler would apply beyond the concurrent representation context, or whether the prejudice  

                                  

requirement from Strickland would be necessary, and noting that "not all attorney conflicts  

                                                                                                                                    

present comparable difficulties").  



      48   Moreau v. State , 588 P.2d 275, 283-84 (Alaska 1978).  



                                                                   -  36 -                                                              2641
  


----------------------- Page 37-----------------------

inherent in such a joint representation.                                   49  If the trial judge fails to conduct this inquiry,       



and   a   defendant   subsequently   raises  a   post-conviction   claim   based   on   the   joint  



representation, the burden then shifts to the State to prove beyond a reasonable                                                                    doubt that   

the joint representation had no adverse effect on the outcome of the defendant's trial.                                                                             50  



                                                                                                                                                           

                          In all other conflict of interest claims, the Alaska courts apply the Cuyler  



                                                                                                                                                         

standard - oftentimes referred to as the LaPierre  standard because of this Court's  



                                                        51  

                                                                                                                                                              

decision in LaPierre v. State.                                The Alaska courts have applied this standard to a wide  



                                                                    52  

                                                                                                                                                    

variety of conflict of interest claims.                                  A "conflict in the abstract," or the mere possibility  



                                                                                                                    53  

                                                                                                   

of a conflict of interest, is insufficient to meet this standard. 



       49    Id.   



       50    Id. ; State v. Celikoski, 866 P.2d 139, 141-42 (Alaska App. 1994).  



       51  

                                                                                                                      

             LaPierre v. State , 734 P.2d 997, 1003-04 (Alaska App. 1987); Cuyler, 446 U.S. at  

                                                                                                   

345-50. We note that the superior court relies heavily on an earlier case, Wilson v. State, 711  

                                                                                                                                     

P.2d 547 (Alaska App. 1985).  However,  Wilson does not lay out the  Cuyler standard as  

                                     

clearly as it could, referring in short hand to the requirement that the defendant show an  

                                                                                                                                                                 

"actual conflict of interest that adversely affected the attorney's performance" simply as a  

requirement that the defendant show "an actual conflict of interest."  Id. at 549.  



       52    See, e.g., White v. State, 773 P.2d 211, 216 (Alaska App. 1989) (applying Cuyler to  



professional conflict of interest); Mitchell v. State , 2015 WL 7201167, at *2 (Alaska App.  

                                             

Nov. 12, 2015) (unpublished) (defendant alleged conflict of interest based on attorney's  

                                                                                                                    

mother's relationship to victim); McDonald v. State , 2015 WL 1881591, at *5 (Alaska App.  

                                                             

Apr. 22, 2015) (unpublished) (defendant alleged conflict of interest when public defender  

                                                                                                                 

agency separately represented two clients involving the same confidential informant); Lane  

                                   

v. State, 1994 WL 16196204, at *3-5 (Alaska App. Mar. 23, 1994) (unpublished) (defendant  

alleged conflict based on attorney's prior guardian ad litem representation of a witness).  



       53    LaPierre , 734 P.2d at 1003-04.  



                                                                              -  37 -                                                                         2641
  


----------------------- Page 38-----------------------

                                2.  Application of these principles to the present case                                                                         



                                In order for Carlson to prevail in his claim for post-conviction relief based                                                                                      



on Dayan's alleged conflict of interest, Carlson was required to prove by clear and                                                                                                                    



convincing evidence that (1) Dayan had a loyalty to someone else or, alternatively, some                                                                                                            



personal interest, that conflicted with Dayan's loyalty to Carlson, and (2) this loyalty to                                                                                                                 



someone else (or                             to his own self interest) actually affected Dayan's preparation or                                                                                            

presentation of                       Carlson's case in a manner that was adverse to Carlson's interests.                                                                                              54  



                                                                                                                                                                                         

                                The superior court failed to use this standard when it assessed Carlson's  



                                                                                                                                                                                       

conflict of interest claim.  Instead, the superior court appeared to rely on a colloquial  



                                                                                                                                                                                             

understanding of the term "conflict." The court found that there was "conflict" between  



                                                                                                                                                                                                          

Dayan's  role  as  the  participant  in  the  videotaped  confession  and  Dayan's  role  as  



                                                                                                                                          

Carlson's advocate at trial.  But the superior court never explained how this purported  



                                                                                                                                                                                                    

"conflict"betweenDayan's rolestranslated intoactively conflicting loyalties inthesense  



                                                                

intended by LaPierre and Cuyler.  



                                                                                                                              

                                Notably, there is nothing in the record currently before us to suggest that  



                                                                                                                                                                                         

Dayan was laboring under an actual conflict of interest in the sense of being motivated  



                                                                                                        55  

                                                                                                                                                                                                        

by loyalty to any person other than Carlson.                                                                  Nor is there any basis for concluding that  



                                                                                                                                                                                                              

Dayan was working against Carlson's interests to protect his own professional self - 



                                                                                                                                                                                              

interest. For example, the record does not suggest that Dayan failed to withdraw because  



                                                                                                                                                                                                       

he was concerned that another attorney would attack his professional competence at trial  



                                                                                                                                                                                                         

or argue that Dayan coerced Carlson into giving a false confession to the police.  To the  



        54      See Newby                 , 967 P.2d at 1014.  



        55  

                          

                We  acknowledge that Carlson's amended application alleges various conflicts of  

                                                                                                                                                                                                        

interest related to Dayan's interactions with the police and with a potential witness.  But  

                                                                                                                       

these  claims  were  not  litigated  at  the  evidentiary hearing,  and  Dayan  was  not  asked  to  

respond to them at that hearing.  



                                                                                                 -  38 -                                                                                            2641
  


----------------------- Page 39-----------------------

contrary, Dayan's testimony at the evidentiary hearing made clear that he did not believe  

                                                                                                                         



he had done anything wrong when he advised Carlson to participate in the videotaped  

      



police interview on November 10.   Dayan likewise testified that he believed it was  

                                                                                                                             



"nonsense" to claim that he coerced Carlson into giving this confession. Dayan was also  

                                                                                                                              



adamant that there were many defense attorneys who would agree that having Carlson  

                                                                                                                        



"come clean" to the police was a reasonable tactical decision, given the circumstances  



known to Dayan at the time.  

                                    



                    As we explain in the next section, it may well have been incompetent for  

                                                                                                            



Dayan to fail to recognize the "conflict" or tension between (1) his earlier stance that the  

                                                                                                                               



accidental shooting version of events was the truth and (2) his role as Carlson's trial  

                                                                                                                             



advocate arguing for the truth of the "B" version of events.  But even if Dayan acted  

                                                                                                                            



incompetently when he continued to represent Carlson under these circumstances, this  

                                                                                                                              



does not mean that Dayan had a conflict of interest within the meaning of our case law.  

                                                                                                                                     



                    Accordingly, we conclude that the superior court erred when it found that  

                                                                                                                              



Carlson had proved that Dayan was laboring under "an actual conflict of interest" that  

                                      



gave  rise  to  a  "non-rebuttable"  presumption  of  prejudice  that  required  reversal  of  

                                                                                                                                



Carlson's convictions.  

                 



          D.  The superior court's finding that Dayan violated the advocate-witness  

                                                                                                

          rule  

                    The State also challenges the superior court's finding that Dayan violated  

                                                                                                                        



Alaska Rule of Professional Conduct 3.7(a) by representing Carlson at trial.  Alaska  

                                                                                                                         



Professional Conduct Rule 3.7(a) provides that a lawyer shall not act as an advocate at  

                                                                                                                                 



a trial in which the lawyer is likely to be a "necessary witness" unless the lawyer's  

                                                                                                                      



testimony relates to an uncontested issue, or is limited to "the nature and value of legal  

                                                                                                                            



                                                             -  39 -                                                       2641
  


----------------------- Page 40-----------------------

services rendered in the case," or unless the lawyer's disqualification "would work                                                                                      



substantial hardship on the client."                      



                            Asthecommentary                         to Rule3.7(a) states,"[c]ombiningtheroles ofadvocate                                           



and witness can prejudice the tribunal and the opposing party and can also involve a                                                                                              



                                                                                                          56  

                                                                                                                                                                  

conflict of interest between the lawyer and client."                                                            The conflict of interest typically  



                                                                                                                                                                

identified in these circumstances is the conflict that might exist between the attorney's  



                                                                                                                                                                         

obligation to testify truthfully and the attorney's duty of loyalty to the client, in cases  



                                                                                                                                                                              57  

                                                                                                                                                        

where the client's position might be weakened by the attorney's truthful testimony. 



                                                                                                                            

                            1.  Was Dayan a "necessary" witness for the defense?  



                                                                                                                                                                   

                            Concerns about a potential violation of the advocate-witness rule typically  



                                                                                                                                                                         

arise when the attorney has material personal knowledge of the underlying events being  



                                                                                                                                                                               

litigated, and the attorney is therefore likely to be called as a witness at trial by one of the  



               58  

                                                                                                                                                                    

parties.            If the anticipated testimony will be adverse to the attorney's client, the attorney  



                                                                      59  

                                                                                                                                                                              

is generally required to withdraw.                                         If the anticipated testimony will be favorable to the  



                                                                                                                                                                                 

client, the attorney is not necessarily required to withdraw, although the attorney is  



       56     See Alaska Professional Conduct Rule 3.7(a), comment para. 1.  



       57     See id. at comment para. 6.  



       58     See United States v. Locascio                              , 6 F.3d 924, 934 (2d Cir. 1993).  



       59  

                                                                  

              See Cannon v. Stonefield, 844 P.2d 1131, 1136 (Alaska 1993) (withdrawal is required  

                                                                                                                                                  

when an attorney learns or it is obvious that the attorney may be called by the other side and  

                                              

the attorney testimony is or may be prejudicial to the client); see also People v. Rodriguez,  

 115 Cal. App. 3d 1018, 1021-22 (Cal. App. 1981) (reversing defendant's conviction where  

defense attorney was required to provide adverse testimony against defendant).  



                                                                                    - 40 -                                                                                2641
  


----------------------- Page 41-----------------------

required to withdraw if the favorable testimony that the attorney has to offer is essential                                                 

to his client's case, thus making the attorney a "necessary" witness for his client.                                                            60  



                                                                                                                                            

                        In Commonwealth v. Patterson, for example, the Massachusetts Supreme  



                                                                                                                                       

Court held that a defense attorney who was a material witness to her client's unrecorded  



                                                                                                                                                     

statements to the police acted incompetently when she failed to withdraw from the  



                                                                                                                                         61  

                                                                                                                              

representation so that she would be available to testify on her client's behalf. 



                                                                                                                                                   

                        Relying on Patterson, the superior court in Carlson's case appears to have  



                                                                                                                                                       

concluded that Dayan was similarly ineffective for failing to recognize his value to  



                                                                                               

Carlson as a defense witness.  The court stated in its order:  



                                                                                                                          

                        Had Dayan been a witness rather than an attorney, he could  

                                                                                                                             

                        have  potentially  aided  the  defense  by  testifying  as  to  the  

                                                                                                                       

                        pressure on Carlson leading up to his confession, as well as  

                                                                                                                         

                        his and Detective Arend's statements that a confession would  

                                                                                                                        

                        be  much  easier  for  Carlson  and  would  result  in  a  lesser  

                        punishment.  



                                                                                                                                            

                        But there is very little in the evidentiary record to support the superior  



                                                                                                                                             

court's conclusion that Dayan would have been a helpful witness for Carlson.  Instead,  



                                                                                                                                                    

Dayan's testimony  at the evidentiary  hearing  suggests that he would  not have had  



                                                                                                                                              

particularly favorabletestimony to offer with regard to thecircumstancesthatled Carlson  



                                                                                                                                                         

to come forward with the accidental shooting version of events.  Dayan testified that it  



                                                                                                                                                

was "nonsense" to claim that he had coerced Carlson into telling this version of events  



                                                                                                                                                      

to the police. And Dayan's testimony about the advice he gave to Carlson regarding the  



      60    See Commonwealth v. Patterson, 739 N.E.2d 682, 692 (Mass. 2000); Commonwealth  



v. Rondeau, 392 N.E.2d 1001,1004 (Mass. 1979) (concluding that once it "became apparent  

                                                                                                                                           

to [defense counsel] that his testimony might be necessary to the proper defense of his client,  

he was ethically obligated to withdraw as counsel").  



      61     See Patterson, 739 N.E.2d at 693-94.  



                                                                        - 41 -                                                                    2641
  


----------------------- Page 42-----------------------

consequences   of   admitting   to  accidentally   shooting   Featherly   would   have   directly  

contradicted Carlson's trial testimony on this matter.                                   62  



                                                                                                                                     

                      Nor does it appear that Dayan would have given testimony to support  



                                                                                      

Carlson's readoption of the "B" version of events after he was arrested.  According to  



                                                                                                                                               

Dayan, even Carlson's "B" version of events kept shifting, and it remained unclear to  



                                                                                                                                             

Dayan what version of events Carlson was actually committed to until right before the  



         

first trial.  



                                                                                                                                       

                      We therefore find little support in the current record for the superior court's  



                                                                                                                                             

conclusion that Dayan would have given favorable testimony for Carlson's defense had  



                                                   

he been available to testify at trial.  



                                                                    

                      2.  Was Dayan an "actual witness"?  



                                                                                                                          

                       In its order, the superior court found that Dayan's actions and statements  



                                                                                                                                          

in theconfession of November 10 were "tantamount to Dayan testifying againsthis client  



                                                                                                                                     

at his trial in clear violation of Alaska Rule of Professional Conduct 3.7."  The superior  



           

court wrote:  



                                                                                                                        

                      Dayan's failure to withdraw as counsel, or alternatively to  

                                                                                                                      

                       seek  a  protective  order  excluding  any  reference  to  his  

                                                                                                                      

                      presence at the interview of his client, meant that the trial jury  

                                                                                                                        

                      knew that the lawyer seeking to establish the credibility of his  

                                                                                                                      

                       client's  story  at  trial  had  already  told  the  police  that  the  

                                                                                                                             

                      version of the story he was espousing at trial was untrue.  

                                                                                                           

                      Dayan told the jury that his client did not shoot Featherly,  

                                                                                                                 

                      while the prosecution showed the jury a recording of Dayan  



      62   On cross-examination   during his second trial, Carlson testified that "nobody" -  



including Dayan - ever warned him that he could face criminal charges if he accidentally   

shot Featherly. The prosecutor later argued to the jury that Carlson's testimony on this point                                 

was not believable - that it was inconceivable that Carlson's attorney would                                                        not   have  

warned him that he might face criminal charges for an accidental shooting.  



                                                                    - 42 -                                                               2641
  


----------------------- Page 43-----------------------

                                    actively participating in Featherly's confession and stating                                                                                  

                                    that he was confident that the confession was truthful.                                                                    



                                    On appeal, the State takes issue with the superior court's characterization                                                                              



of Dayan as an "actual witness."                                                        We agree with the State that Dayan did not become an                                                                                      



"actual witness" at Carlson's trials. Dayan did not take the stand and provide statements                                                                                                                   



under oath at either of Carlson's trials.                                                                However, we agree with the superior court that                                                                       



Dayan's participation as Carlson's attorney created problems akin to the "unsworn                                                                                                                            

witness" problem recognized by this Court in                                                                               Kanulie v. State                            .63  



                                                                                                                                                                                                                                

                                    The problemof the attorney as "unsworn witness" can arise when either the  



                                                                                                                                                                                                                                

defense attorney or the prosecutor in a criminal case has participated in or witnessed the  



                                                                                                            64  

                                                                                                                                                                                                                                           

events that will be explored at the trial.                                                                          The concern in such situations is two-fold:  



                                                                                                                                                                                                                                

First, the attorney may be "constrained from making certain arguments on behalf of his  



                                                                                                                                                                                                                   

client because of his own involvement, or may be tempted to minimize his own conduct  



                                                                              65  

                                                                                                                                                                                                                                

at the expense of his client."                                                        Second, the attorney's role "as advocate may give his  



                                                                                                                                                                                                                               

client  an  unfair  advantage,  because  the  attorney  can  subtly  impart  to  the  jury  his  



                                                                                                                                                                                                                                  

first-hand knowledge of the events without having to swear an oath or be subject to  

cross-examination."66  



                                                                                                                                                                                                                

                                    Here,  there  may  be  an  argument  that,  because  of  Dayan's  personal  



                                                                                                                                                                                                                            

involvementinthenow-repudiated confession ofNovember10, hewasconstrained from  



                                                                                                                                                                                                                            

attacking that confession as aggressively as another attorney might have. But as we have  



                                                                                                                                                                  

already discussed, there is little in the record to suggest that Dayan actually felt such a  



         63       Kanulie v. State, 796 P.2d 844 (Alaska App. 1990).  



         64       Losascio , 6 F.3d at 933-34.  



         65       Id.  



         66       Id.  



                                                                                                            - 43 -                                                                                                        2641
  


----------------------- Page 44-----------------------

constraint.   Moreover, as we discuss later in this opinion, the record shows that Dayan                                                                                                                                 



did   attack   the   November   10   confession   as   false,   and   Dayan   provided   multiple  



explanations for why Carlson might have falsely confessed to accidentally shooting                                                                                                                                



Featherly.  



                                    The bigger problemappears to be the inconsistency between Dayan's prior                                                                                                                   



statements and actions related to the November 10 confession and his later actions and                                                                                                                                           



statements at trial in support of the "B" defense.                                                                                          In other words, unlike the typical                                          



unsworn witness case, the concern here is not that Dayan's dual role might have given                                                                                                                                                        



his client an unfair advantage.                                                      Rather, the concern is that Dayan's dual role (as both                                                                                   



Carlson's attorney and as a participant in the November 10 interview) would have                                                                                                                                             



worked to Carlson's disadvantage because Dayan's statements during (and leading up                                                                                           

to) the November 10 interview were adverse to Carlson's trial testimony.                                                                                                                               67  



                                                                                                                                                                                                                          

                                    We addressed the more traditional problem presented by a attorney acting  



                                                                                                                        68  

                                                                                                                                                                                                                     

                                                                                                                               In the middle of Kanulie's trial, Kanulie  

as an "unsworn witness" in Kanulie v. State. 



                                                                                                                                                                                                                                   

filed a motion to preclude the State from introducing two police interviews because the  



                                                                                                                                                                       69  

                                                                                                                                          

trial prosecutor had personally participated in both interviews.                                                                                                                                                                       

                                                                                                                                                                              Kanulie argued that, if  



                                                                                                                                                                                                                          

the interviews were played, he would want to call the prosecutor as a witness to testify  



                                                                                                                                                                                                                     

to Kanulie's demeanor at the time, and to explain what was said during certain portions  



         67       Cf. People v. Rodriguez, 115 Cal. App. 3d 1018, 1021, 171 Cal. Rptr. 798 (Cal. App.  



                                                                                                              

 1981) (noting that when a defense attorney has been placed in a position adverse to his client,  

                                                                                                                                                                                                     

all his efforts on the defendant's behalf will be suspect: "The jury can hardly avoid inferring  

the defendant's own attorney does not believe in the defense he himself is presenting.").  



         68       Kanulie v. State, 796 P.2d 844 (Alaska App. 1990).  



         69       Id. at 846.  



                                                                                                              - 44 -                                                                                                         2641
  


----------------------- Page 45-----------------------

                                                                                                               70  

of the interviews that were inaudible in the recording.                                                             Kanulie also argued that the                        



interviews should be excluded because the prosecutor would be able to use his dual role                                                                                



as both participant and prosecutor "to argue his own credibility as a witness to events                                                                           



                                                                                       71  

                                                                                                                                                                        

which were part of the evidence at trial."                                                    Although the trial court prohibited the  



                                                                                                                                                                          

prosecutor from referring to his own involvement in the recorded interviews when he  



                                                                                                                                                           

argued the case to the jury, the trial court ruled that the interviews were otherwise  

admissible.72  



                                                                                                                                                                           

                           We affirmed this ruling on appeal, concluding that Kanulie's statements in  



                                                                                                                                                                          

the recorded interview "essentially spoke for themselves," and also that there was no  



                                                                                                                                                                        

need to call the prosecutor as a witness because the trooper who participated in the  



                                                                                                                   73  

                                                                                                                                                                        

interview  was  likewise  available  to  testify,  if  needed.                                                            We  also  emphasized  the  



                                                                                                                                                                   

untimeliness of Kanulie's motion -indicating that such motionsmust bebrought before  



                                                                                                                                                                       

the  trial  begins  so  that  there  could  be  timely  discussions  regarding  whether  the  



                                                            74  

                                            

prosecutor should be recused. 



                                                                                                                                                                                 

                           Here,  the State argues that Dayan's participation  in the November  10  



                                                                                                                                                                 

interview  was  analogous  to  the  prosecutor's  participation  in  the  recorded  police  



                                                                                                                                                                         

interviews in Kanulie.  According to the State, Dayan played only a limited role in the  



                                                                                                                                                                 

November 10 interview, and his participation involved little more than asking neutral  



                                                                                                                                         

"clarifying questions" about parts of Carlson's accidental shooting story.  



       70    Id.   



       71    Id.  

                     



       72    Id.  



       73    Id. at 848.  



       74    Kanulie, 796 P.2d at 846-48.  



                                                                                 - 45 -                                                                             2641
  


----------------------- Page 46-----------------------

                                                                We disagree with the State's characterization of this evidence.                                                                                                                                                                                                                                          Although  



 the State is correct that Dayan never directly asserted in the videotaped interview that he                                                                                                                                                                                                                                                                                                                  



 believed the accidental shooting version of events and disbelieved Carlson's "B" version                                                                                                                                                                                                                                                                                              



 of events, Dayan's behavior throughout the interview is consistent with this attitude.                                                                                                                                                                                                                                                                                                                      In  



 the videotaped confession, Dayan can be seen actively encouraging Carlson to provide                                                                                                                                                                                                                                                                                                



 more   details   about   the   accidental   shooting   version   of   events,   and   Dayan   readily  



 participated in Carlson's                                                                                          purported reenactment oftheshooting;                                                                                                                                                 indeed, Dayan appeared                                                



 to be more enthusiastic about the reenactment than Carlson himself.  And Dayan even                                                                                                                                                                



 vouched for Carlson's credibility at one point during the interview.                                                                                                                                                                                                          



                                                                Moreover, the State's brief fails to acknowledge that the jury                                                                                                                                                                                                                                                  did   hear  



  statements from Dayan in which he indicated that he was "pretty confident" that the                                                                                                                                                                                                                                                                                                                     



 accidental discharge version of events was true. At                                                                                                                                                                                        Carlson's second trial, the prosecutor  



 elicited these statements from Detective Arend (with no hearsay objection from Dayan).                                                                                                                                                                                                                                                                                                                                       



                                                                We therefore agree with                                                                                                   the superior                                                   court that Dayan's                                                                                 dual roles at                                      



 Carlson's trials potentially created significant liabilities for the defense.                                                                                                                                                                                                                                                                      We also agree                              



 with the superior court that it was not reasonable for Dayan to believe that he would be                                                                                                                                                                                                                                                                                                                     



just as able as any other lawyer to represent Carlson in advocating the truth of the "B"                                                                                                                                                                  



 version   of   events   at   trial,   knowing   that   the   jury   would  learn  that   he   had   actively  

 facilitated and promoted what Carlson now claimed to be a false confession.                                                                                                                                                                                                                                                                                              75  



                 75              We   note  that  the  problem   of   Dayan  as  an  "unsworn  witness"  was  raised  by   the  



 prosecutor in a pleading filed between the two trials.                                                                                                                                                                                                   That pleading, which was filed on  

 March 7, 2000,  discussed the problem of Dayan as an "unsworn witness" if a former client                                                                                                                                                                                                                                                             

 of   Dayan  testified  at  trial,  suggesting  that  the  former  client's  testimony   could  require  

 disqualification of Dayan at the second trial.                                                                                                                                                             In the prosecutor's discussion of the potential   

 unsworn witness problem that would be created by this witness's testimony, the prosecutor                                                                                                                                              

 noted that this was a problem that "already existed in this case" based on "Attorney Dayan's                                                                                                                                                                                                                                                                                        

 presence  at  Carlson's  November  1998  video-taped  confession  which  Attorney   Dayan  

                                                                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                                                - 46 -                                                                                                                                                                                           2641
  


----------------------- Page 47-----------------------

                                                     Thatsaid, wedisagreewith the superior court's findingthat                                                                                                                                                                          Dayan's failure  



to recognize the potential liabilities of his dual roles constituted an "actual conflict of                                                                                                                                                                                                                                                 



interest" for purposes of the "presumed prejudice" rule under                                                                                                                                                                                                Cuyler   and  LaPierre.   



Instead, based on the record currently before us, we conclude that these deficiencies in                                                                                                                                                                                                                                                    



Dayan's representation must be analyzed under the normal two-prong                                                                                                                                                                                                                        Risher  test for   



ineffective assistance of counsel - a test that requires the defendant to show that there                                                                                                                                                                                                                                        



is a reasonable possibility that the litigation would have ended with a different outcome.                                                                                                                                                                                                                      



                           E.    The superior court's findings on Carlson's ineffective assistance of                                                                                                                                                                                                            

                           counsel claim   



                                                     Under  Risher v. State                                                                 , a defendant who claims ineffective assistance of                                                                                                                                             



counsel must prove two things:  first, that their attorney acted incompetently (                                                                                                                                                                                                                                     i.e., that  



the attorney failed to meet the standard of performance minimally required of criminal                                                                                                                                                                                                                             



lawpractitioners);and                                                                  second,that theattorney's incompetenceprejudicedthedefendant                                                                                                                                                           



in the sense that there is at least a reasonable possibility that the result at the defendant's                                                                                                                                                                                                        

trial would have been different but for the attorney's incompetence.                                                                                                                                                                                                       76  



                                                                                                                                                                                                                                                                                                                                   

                                                     In Carlson's case, the superior court found that Carlson had proved both  



                                                                                                                                                                                                                                                                                    

prongs  by  clear  and  convincing  evidence.                                                                                                                                              On  appeal,  the  State  challenges  this  



                                                                                                                                                                                                                                                                                                                                  

conclusion, arguing that it rests on clearly erroneous factual findings and incorrect legal  



                                                                                                                                                                                                                                                                                      

assumptions.  Although we disagree with certain aspects of the State's characterization  



                                                                                                                                                                                                                                                                                                              

of the record, we nevertheless agree with the State that there are sufficient questions  



             75            (...continued)  



subsequently argued was false." Carlson subsequently decided to forgo the testimony of this  

                                                                                                                                                                                                                                                                                                                                        

former client and no further discussion of the unsworn witness problem appears to have  

                                                                                                                                                                                                                                                                                        

occurred.  



             76           Risher, 523 P.2d at 424-25.  



                                                                                                                                                               - 47 -                                                                                                                                                           2641
  


----------------------- Page 48-----------------------

 about the court's factual findings and legal reasoning to require a remand for further                                                                                                                                                                                                                                                                                                                                                                                             



proceedings on the underlying ineffective assistance of counsel claim, particularly with                                                                                                                                                                                                                                                                                                                                                                                                            



regard to the prejudice prong of the                                                                                                                                                                               Risher  test.  



                                                                                1.   The   superior   court's   erroneous   ruling   regarding   the  

                                                                             protective order   



                                                                               In the superior court, Carlson argued that Dayan acted below the standard                                                                                                                                                                                                                                                                                                                   



 of competence when he failed either to withdraw from the representation or to seek a                                                                                                                                                                                                                                                                                                                                                                                                                                 



protective order that would have prevented the jury from learning that Dayan was the                                                                                                                                                                                                                                                                                                                                                                                                                       



 attorney who facilitated the November 10 videotaped confession.                                                                                                                                                                                                                                                                                                                                                     In   its  order, the   



 superior court focused primarily on Dayan's failure to seek a protective order. The court                                                                                                                                                                                                                                                                                                                                                                                                      



 found that "[such] a motion for protective order [would] have been granted," and that this                                                                                                                                                                                                                                                                                                                                                                                                              



motion "was the minimum required for Carlson to have received a fair trial."                                                                                                                                                                                                                                                                                                                                                       



                                                                               We disagree with the superior court's finding that a protective order would                                                                                                                                                                                                                                                                                                                               



have been granted in these circumstances.                                                                                                                                                                                                                            As Carlson's own expert witness, John                                                                                                                                                                                     



Murtagh,   acknowledged   at   the   evidentiary   hearing,  Dayan's   participation   in   the  



November 10 interview was an integral part of that interview, and it would be extremely                                                                                                                                                                                                                                                                                                                                                                            



 difficult - if not impossible - to edit Dayan out of the videotape without substantively                                                                                                                                                                                                                                                                                                                                                       



 altering one of the prosecution's most important pieces of evidence against Carlson.                                                                                                                                                                                                                                                                                                                                                                                                                                            



 Seeking a protective order might have brought additional attention to the problem that                                                                                                                                                                                                                                                                                                                                                                                                                



Dayan's dual roles presented, and it might have resulted in either Dayan's withdrawal                                                                                                                                                                                                                                                                                                                



 or some form of knowing waiver of the problem by Carlson.                                                                                                                                                                                                                                                                                                               But there is no reason to   

believe that a request for a protective order would have been granted.                                                                                                                                                                                                                                                                                                                                                     77  



                    77                  See Adams v. State                                                                                           , 390 P.3d 1194, 1203-04 (Alaska App. 2017) ("[W]hen a claim  



 of ineffective assistance of counsel is based on an attorney's failure to pursue a motion, the                                                          

                                                                                                                                                                                                                                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                                                                                                                               - 48 -                                                                                                                                                                                                                                           2641
  


----------------------- Page 49-----------------------

                                                               2.    The superior court's erroneous findings regarding the                                                                                                                                                        

                                                             first jury's awareness of the recorded confession                                                                                                                                  



                                                               As we just explained, there are two prongs to an ineffective assistance of                                                       



 counsel claim:                                                        incompetency, and resulting prejudice.                                                                                                                                                     In Carlson's case, the majority                                                                           



 of the superior court's order addressed the incompetency prong, and very little attention                                                                                                                                                                                                                                                                                 



 was paid to the prejudice prong.  The superior court devoted only a page and a half of   



 its twenty-eight page order to its prejudice analysis.                                                                                                                                                                                                 The superior court's reasons for                                                                                                             



 finding prejudice ultimately rested on its erroneous findings that (1) the protective order                                                                                                                                                                                                                                                                                               



 would   have   been   granted;   and  (2)  "there   is   a   possibility"   that   the   granting   of   the  



 protective order would have made a difference to the outcome of Dayan's second trial.                                                                                                                                                                                                                                                                                                                                   



                                                               The superior court reached this conclusion because of a mistaken finding                                                                                                                                                                                                                                           



 that the jury at Carlson's first trial "did not see or hear" Dayan's participation in the                                                                                                                                                                                                                                                                                                          



 November 10 confession (and they could not reach a verdict on the murder charge),                                                                                                                                                                                                                                                                                          



 while   the   jurors   at   the   second   trial   were   informed   of   Dayan's   participation   in   the  



 November 10 confession (and they convicted Carlson).                                                                                                                                                                  



                                                               As the State points out on appeal, the superior court is mistaken in its                                                                                                                                                                                                                                                                



 characterization of the difference between the two trials. The record shows that the jury                                                                                                                                                                                                                                                                                                       



 at the first trial heard (and partially saw) Dayan's participation in the November 10                                                                                                                                                                                                                                                                                                                



                                                      78  

 confession.                                                                                                                                                                                                                                                                                                                                                                                        

                                                                    The audio recording of the November 10 interview was played for the  



                 77             (...continued)  



 defendant must show (1) that the proposed motion would ultimately have been successful,  

                                                                                                                                             

 (2) that any competent attorney would have pursued the proposed motion, and (3) that there  

                                                                                                                                                                                                                       

 is reason to believe that the ultimate outcome of the proceedings would have been different  

 had the motion been granted.") (citing State v. Steffensen, 902 P.2d 340, 342 (Alaska App.  

  1995)).  



                 78  

                                                                                                                                                                                                                                                                                                     

                                As previously explained, the prosecutor played portions of the videotape for the first  

                                                                                                                                                                 

jury during his opening statement.  But the prosecutor failed to introduce this evidence at  

                                                                                                                                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                                                             - 49 -                                                                                                                                                                                         2641
  


----------------------- Page 50-----------------------

juries at both trials, and Dayan's active participation was obvious from that recording.                                                                                                                                                          



 Thus, contrary to the superior court's assumptions, the jury at Carlson's first trial was                                                                                                                                          



 well aware of Dayan's support for the "accidental shooting" version of events that                                                                                                                                                 



 Carlson described during the November 10 confession - and thus well aware of the                                                                                                                                                     



 potential dissonance between the position Dayan advocated in November 1998 and the                                                                                                                                                    



 position he was advocating at Carlson's trial.                                                                 



                                     In sum, even though there were differences between the two trials that are                                                                                                                        



 potentially relevant to an analysis of Carlson's ineffective assistance of counsel claim,                                                                                                      

 the superior court was mistaken as to what those differences were.                                                                                                                     79  



                                                                                                                                                                                                   

                                     3.   The trial court's finding that Dayan "made little to no  

                                                                                                                                                             

                                     attempt to unring the accidental discharge bell"  



                                                                                                                                                                                                        

                                     At the evidentiary hearing, attorney Murtagh testified that Carlson's trial  



                                                                                                                                                                                                                                         

 would have been "completely different" if a different attorney had "develop[ed] ...  



                                                                                                                                                                                                                                         

 Carlson's psychological mental state on the day of the [November 10] confession."  In  



                                                                                                                                                                                                             

 the superior court's written ruling, the court quoted Murtagh's testimony approvingly  



                                                                                                                 

 and seemingly adopted Murtagh's view that a different lawyer would have done more  



                                                                                                                                                                                                                                           

 to attack the November 10 confession as false.   According to the superior court, a  



          78       (...continued)  



 trial.   The jury asked to review this evidence during its lengthy deliberations and were  

                                                                                                                                                                                 

 informed  that  the  audiotape  was  available  but  the  videotaped  portions  (which  included  

 Carlson's  confession  and  the  reenactment)  were  not  available  because  they were  never  

                                                                                                                                                                                                                 

 introduced into evidence.  This error was not repeated at the second trial, where the relevant  

                                                                      

 videotaped  portions  were  admitted  at  trial  and  widely discussed  by both  parties  during  

                                                                                                                                                                                           

 closing arguments.   



          79       We note that, with the exception of Carlson's trial testimony, the first trial has not  

                                                                                                                                                                                         

 been transcribed and it is therefore not clear how the confession was argued and presented  

 to the jury at that trial.  



                                                                                                                -  50 -                                                                                                          2641
  


----------------------- Page 51-----------------------

different lawyer would have been able to "attack[] the [November 10] statement by  

                                                                                                                                  



pointing out mistakes and [the] influence Dayan had in eliciting the statement," and by  

                                                                                                                                  



attributing that statement to "the natural progression of youth."  

                                                                                      



                     The superior court also contrasted what this hypothetical new attorney  

                                                                                                                                       



might have done with what Dayan did at trial - criticizing Dayan for "not utiliz[ing] any  

                                                                                                                                



of these tools" and making "little to no attempt to unring the accidental discharge bell."  

                                                                                                                                       



                     But  contrary  to  the  superior  court's  characterization  of  Dayan's  trial  

                                                                                                                               



performance, Dayan actually did utilize many of these tools, and he made active efforts  

                                                                                                                            



to "unring" the accidental shooting version of events.   In his summation to the jury,  

                                                                                                                              



Dayan  expressly  argued  that  Carlson  falsely  confessed  during  the  November  10  

                                                                                                                                 



interview, and Dayan discussed the reasons why Carlson would have done that.  He  

                                                                                                                                 



emphasized  Carlson's youth, and  he  argued  that Carlson  was overwhelmed  by  the  

                                                                                                                                 



investigation and easily influenced by the adults around him - including both Detective  

                                                                                                                       



Arend and Dayan himself.  

                             



                     This is not to say that these same arguments could not have been stronger  

                                                                                                                         



if a different attorney was making them.  But the difficulty we face in reviewing the  

                                                                                                                                 



superior  court's  prejudice  analysis  is  that  the  court's  analysis  fails  to  address  the  

                                                                                                                                



considerable strength of the State's case against Carlson, and it likewise fails to address  

                                                                                                                          



the credibility problems Carlson faced, regardless of who was representing him. This is  

                                                                                                                                   



not a case where prejudice - i.e., the possibility of a different outcome at trial - is so  

                                                                                                                                  



obvious that an in-depth prejudice analysis is not required.   Currently, the superior  

                                                                                                                        



court's prejudice analysis is premised on faulty assumptions and incorrect facts.  The  

                                                                                                                                



superior court's order barely mentions the State's evidence in its analysis, and the court's  

                                                                                                                           



order only briefly acknowledges the trial judge's finding that Carlson committed perjury  

                                                                                                                           



at both of his trials.  

                      



                                                              -  51 -                                                        2641
  


----------------------- Page 52-----------------------

                     To be clear, we are not saying that the superior court was bound by the trial  

                                                                                                                              



judge's finding that Carlson perjured himself at the two trials, or by the trial judge's  

                                                                                                                        



finding that the "B" version of events was "patently false."   But the superior court  

                                                                                                                            



needed to acknowledge those findings and address them in some way - particularly  

                                                                                                                  



given the fact that, unlike the trial judge, the superior court never heard Carlson testify.  

                                                                                                                                     



(Carlson did not take the stand during the post-conviction relief proceedings.)   The  

                                                                                                                             



superior court also needed to acknowledge the credibility difficulties that Carlson faced,  

                                                                                                                           



regardless of who represented him at trial.  

                                                          



                    Because the superior court's order fails to provide adequate reasons for the  

                                                                                                                               



court's  finding  of  prejudice,  we  conclude  that  a  remand  for  further  proceedings  is  

                                                                                                                                 



required.  



           Conclusion  

                              



                    For the reasons explained above, we AFFIRM the superior court's ruling  

                                                                                                                           



that Carlson's application for post-conviction relief was timely.  We likewise AFFIRM  

                                                                                                                      



the superior court's ruling that Carlson's application is not prohibited by our decision in  

                                                                                                                                 



Arnett .  However, we REVERSE the superior court's ruling on Carlson's ineffective  

                                                                                                                   



assistanceofappellatecounsel claim(a ruling which Carlsonconcedes is erroneous), and  

                                                                                                                               



we VACATE the superior court's rulings on Carlson's conflict of interest claim and his  

                                                                                                                                



ineffective assistance of trial counsel claim.  We REMAND this case to the superior  

                                                                                                                       



court for further proceedings consistent with the guidance provided here.  

                                                                                                        



                                                             -  52 -                                                        2641
  

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