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Grinols v. State (8/1/2003) sp-5718
Grinols v. State (8/1/2003) sp-5718
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
email corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN BRUCE GRINOLS, )
) Supreme Court No. S-9939/9940
Petitioner/Cross-Respondent, )
) Court of Appeals No. A-7349
v. ) Superior Court Nos. 1KE-99-
0019 CI
)
1KE-91-1516 CR
STATE OF ALASKA, )
) O P I N I O N
Respondent/Cross-Petitioner. )
_______________________________ ) [No. 5718 - August 1,
2003]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
Thomas M. Jahnke, Judge.
Appearances: John B. Grinols, pro se,
Vancouver, British Columbia, Canada. Nancy
R. Simel, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent/Cross-
Petitioner. Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for Amicus
Curiae Alaska Public Defender Agency.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. We accepted two questions on a petition for hearing
regarding the ability of a defendant to challenge the
effectiveness of post-conviction relief counsel: (1) Whether the
due process clause of the Alaska Constitution requires that a
criminal defendant be able to challenge the effectiveness of
counsel in a post-conviction proceeding, and (2) if so, whether
due process requires the appointment of counsel in that
proceeding. Because the due process clause does require that a
defendant be able to challenge the effectiveness of counsel, we
affirm the decision of the court of appeals on the first
question. Because the petition for hearing was improvidently
granted on the second question whether due process requires
counsel to be appointed in such proceedings we decline to
consider it.
II. FACTS1 AND PROCEEDINGS
John Grinols was convicted of three counts of sexual
abuse of a minor in 1994. In 1995 the court of appeals affirmed
those convictions. Grinols then filed a petition for post-
conviction relief, alleging ineffective assistance of counsel on
the part of his trial attorney. That petition was denied and
that denial was affirmed by the court of appeals in 1998.
Grinols next filed a petition for writ of habeas corpus
in January 1999, raising new attacks on his conviction. Relying
on Alaska Civil Rule 86(m), the superior court ruled that
Grinolss habeas corpus petition had to be treated as a second
application for post-conviction relief. As AS 12.72.020(a)(6)
declares that defendants are entitled to only one application for
post-conviction relief, the superior court dismissed Grinolss
lawsuit.
Grinols appealed the dismissal, arguing that he had a
constitutional right to pursue the new collateral attacks on his
conviction. He argued that Civil Rule 86(m) abridged his right
of habeas corpus or, in the alternative, that even if his habeas
corpus petition must have been deemed a second application for
post-conviction relief, he was still entitled to litigate his
claims in spite of AS 12.72.020(a)(6). Grinols also contended
that he was entitled to appointed counsel to assist him in his
litigation.
The court of appeals held that the doctrine of res
judicata that applied to habeas corpus and post-conviction relief
litigation even prior to the enactment of the rule and statute
would bar all but three of Grinolss claims. Of those three
claims, the court of appeals held, one should have been treated
as a motion in the underlying case2 and another fell within a
legislatively-created exception to the ban on second applications
for post-conviction relief.3 The only remaining claim before the
court was Grinolss assertion that he received ineffective
assistance of counsel when he litigated his first application for
post-conviction relief.
The court of appeals upheld the constitutionality of
Civil Rule 86(m), which states that post-conviction relief
supersedes habeas corpus as the method for collateral attack, and
it upheld AS 12.72.020(a)(6), which limits a defendant to one
application for post-conviction relief. The court further held
that, under the due process clause of the Alaska Constitution,
defendants must be allowed to pursue a second petition for post-
conviction relief if they allege that they received ineffective
assistance of counsel in litigating their first application. The
court reasoned that, as defendants have a right to competent
legal representation when they litigate a first application for
post-conviction relief, they must be allowed to attack the result
of that first application by showing that they received
incompetent representation.
In order to challenge the effectiveness of counsel, the
court of appeals held that the defendant must do more than show
that his or her post-conviction relief attorney failed to raise
or competently argue a colorable claim. The defendant must also
prove (1) that the defendant was diligent in raising the
ineffective counsel claim, (2) that the prior post-conviction
relief attorney was incompetent, (3) that the underlying claim
was meritorious, and (4) that there is a reasonable possibility
that the outcome of the defendants original trial court
proceedings would have been different but for counsels
incompetence.4
The court of appeals, though, held that indigent
defendants are not entitled to counsel at public expense when
litigating a second application for post-conviction relief.
Rather, the court stated, the superior court has authority, under
the due process clause, to appoint counsel for an indigent
defendant where the court finds that a lawyers assistance is
needed for a fair and meaningful litigation of the defendants
claim.5
Grinols filed a petition for hearing, alleging several
errors. The state cross-petitioned, arguing that the court of
appeals erred in holding that under the due process clause of the
Alaska Constitution a defendant may bring a second application
for post-conviction relief if the defendant alleges ineffective
assistance of counsel in litigating the first application. We
granted the states cross-petition and one part of Grinolss
petition. We directed the parties to file briefs addressing two
issues:
a. Under the Alaska Constitutions due process clause, must
defendant be given an opportunity to challenge the competency of
representation provided by an appointed attorney who represented
the defendant in a post-conviction relief action?
b. If so, does the defendant also have a constitutional right
to counsel and to appointed counsel to assist in prosecuting the
ineffective assistance of counsel claim?[6]
We also invited the Alaska Public Defender Agency and the Office
of Public Advocacy to file amicus briefs.7
III. STANDARD OF REVIEW
We interpret the Alaska Constitution using our
independent judgment,8 adopt[ing] the rule of law that is most
persuasive in light of precedent, reason, and policy.9
IV. DISCUSSION
In his brief to this court, Grinols separates his
argument into nine sections. Six of those nine sections10 have no
bearing on the questions accepted by this court for review.
Rather, these sections either argue the merits of his ineffective
counsel claim in his first post-conviction relief proceeding;
detail specific encounters with various people involved in the
investigation or litigation; or threaten members of the
prosecution team, law enforcement, and this court.
The remaining three sections of Grinolss brief, titled
Constitutional Right to Counsel, Due Process, and Ineffective
Assistance and the Denial of Habeas Procedures as Remedy, at
least nominally relate to the questions before this court. In
his discussion of the constitutional right to counsel, though,
Grinols spends the majority of his argument asserting his right
to appointed counsel of his choice, his right to co-counsel in a
dual representation scheme, and the merits of the attorney-client
privilege in a post-conviction relief proceeding.
Given this state of the briefing, we will address the
arguments asserted by the state and by the public defender as
amicus. To the extent that Grinolss arguments reach either of
the questions accepted by us for review, those arguments will be
addressed. However, because in a petition for hearing we will
review only those issues accepted by this court,11 we will not
address the remainder of Grinolss arguments.
A. Under the Due Process Clause of the Alaska Constitution, a
Defendant Must Be Given an Opportunity To Challenge the
Competency of Representation Provided by an Appointed Attorney
Who Represented the Defendant in a Post-Conviction Relief Action.
1. The right to counsel in a first post-
conviction proceeding is of a constitutional
nature; it may not be abridged by statute.
The state argues that the right to counsel in a post-
conviction relief proceeding is statutory and therefore not
subject to the guarantee of effective assistance of counsel.
After discussing the original right to counsel envisioned by the
drafters of the Alaska Constitution and Gideon v. Wainwright,12
the state analyzes the development of the right to counsel in
post-conviction relief litigation. We review that history now to
place the right to counsel in its proper historical context.
In Nichols v. State,13 we first acknowledged that a
defendant is entitled to representation at the hearing of a first
application for post-conviction relief,14 although the court was
divided in its reasoning. Justice Dimond based the courts
opinion on equal protection grounds, stating that where a person
seeking to have a sentence vacated or set aside under the
criminal rules has the right apart from statute to hire
representation for the hearing, a prisoner without funds to hire
counsel for the hearing has the right to have counsel appointed.15
Justice Rabinowitz, in a concurring opinion, stated that once a
hearing under the criminal rules to set aside a conviction is
required, the contemplated hearing is adversarial in nature and
that [f]ailure to appoint counsel in such circumstances results
in fundamental unfairness to an indigent movant.16 Justice
Rabinowitz supported his concurrence with two alternate theories:
First, the supervisory powers of this court over the criminal
justice system require appointment of counsel to all indigent
defendants in a hearing to set aside or vacate a sentence,
thereby giv[ing] recognition to the paramount importance of
insuring the integrity and accuracy of [this courts] fact-finding
processes.17 Alternatively, Justice Rabinowitz stated that
denying appointment of counsel in this case was fundamentally
unfair and violative of the due process clause of article [I],
section 7 of the Alaska Constitution.18
Donnelly v. State19 expanded the right articulated in
Nichols. In Nichols we held that an indigent prisoner seeking
[post-conviction relief] must be afforded representation at a
hearing for post-conviction for relief.20 Donnelly held that the
counsel requirements compelled by Nichols must be extended to
require representation at the time the initial application is
filed.21 We further stated, [i]t is therefore essential that he
be represented by competent counsel in the event that he is
unable to afford an attorney.22 Although Donnelly did not expound
on the basis for the right to counsel, and in McCracken v. State23
we noted that our ruling [in Donnelly] was compelled not by the
Constitution, but rather by what we regarded to be an inherent
procedural requirement of [Alaska] Criminal Rule 35,24 we did not
foreclose the existence of the constitutional right. We also
stated that, although Criminal Rule 39(b), by its use of the term
defendant, applied to appointment of counsel in pre-conviction
proceedings, the appointment of counsel in post-conviction relief
proceedings is nevertheless mandated by the Criminal Rules.25
The court of appeals addressed the basis for the right
to counsel in post-conviction relief proceedings in Hertz v.
State.26 In Hertz, the appeals court stated that it had been
suggested that the Alaska Constitution guarantees a right to
counsel in post-conviction proceedings, citing the divided court
in Nichols, but that subsequent cases had indicated that an
indigent defendants right to the appointment of counsel in
presenting his or her first application for post-conviction
relief [was] based solely on the rules of criminal procedure,27
citing McCracken and Donnelly. In his concurrence to Hertz, then-
Chief Judge Bryner stated that [i]nasmuch as the supreme court
has decided that representation by counsel [in an initial
application for post-conviction relief] is a matter of right,
there is simply no basis for concluding that post-conviction
relief applicants should receive anything less than the full,
effective assistance of counsel that is constitutionally
guaranteed.28
The state argues that under Nichols and Donnelly the
court of appeals was wrong in its conclusion in Hertz and that
the right to counsel under AS 18.85.100(c) is not of a
constitutional nature and does not give rise to a due process
right to counsel. As this right is either statutory or granted
under this courts supervisory powers, the state asserts, the
right can be restricted, as other rights have been.
We start with the observation that in Nichols the
majority both Justice Dimond and Justice Rabinowitz29 found that
the right to representation of an indigent prisoner bringing an
application for post-conviction relief was constitutionally-
based. Next, in Donnelly we held that it was essential that an
indigent prisoner bringing an application for post-conviction
relief be represented from the time of the filing of the claim.30
The right to representation, first articulated in Nichols, was
expanded in Donnelly to assure a full and fair exploration of the
claim.31 This language shows that our concern for fairness, an
inherent concern in the criminal justice system, prompted the
guarantee of a right to counsel in post-conviction relief
litigation. And as then-Chief Judge Bryner of the court of
appeals stated, it appears as though representation by counsel is
a matter of right.32 To the extent that any of our prior
decisions has cast doubt upon the constitutional underpinning of
the right to counsel in post-conviction relief actions, we hold
today that the right to counsel in a first application for post-
conviction relief is of a constitutional nature, required under
the due process clause of the Alaska Constitution.
2. The Alaska Constitutions due process
clause requires that counsel in a post-conviction
relief application be effective.
We turn now to the question whether the Alaska
Constitutions due process clause requires that counsel in a first
application for post-conviction relief be effective.
The Alaska Constitution guarantees that [n]o person
shall be deprived of life, liberty, or property, without due
process of law.33 We have adopted the balancing test from Mathews
v. Eldridge34 to determine what process is due:35
Identification of the specific dictates of
due process generally involves consideration
of three distinct factors: the private
interest affected by the official action; the
risk of an erroneous deprivation of such
interest through the procedures used and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the governments interest, including
the fiscal and administrative burdens that
additional or substitute procedural
requirements would entail.[36]
The private interest affected in a case in which a
defendant seeks to bring an ineffective counsel claim against an
attorney appointed to represent the defendant in a post-
conviction relief proceeding is the defendants interest in
effective representation. An indigent defendant is guaranteed
legal representation in a first application for post-conviction
relief both under the Alaska Constitution37 and under AS
18.85.100(c).38 If defendants post-conviction relief counsel were
ineffective, viable challenges to a conviction would be
foreclosed and relief would be denied if a second petition for
post-conviction relief were barred. Without relief, there is no
guarantee of a fair post-conviction relief action, depriving the
constitutional and statutory right to representation of any
substance. The risk of erroneous deprivation of a persons right
to effective representation, then, is great.
The burden on the state, though, is also appreciable.
Administratively, the state would be required to address second
post-conviction relief petitions to determine if counsel for a
first post-conviction relief petition was inadequate. Rather
than the court simply denying the petition outright as would
otherwise be required under AS 12.72.020(a)(6),39 the state would
be required to litigate the petition. This increased
administrative burden represents an increased fiscal burden as
well. The possibility that prisoners will file frivolous claims
if second applications raising ineffective counsel claims are
allowed would increase the states burden.
These competing interests are both weighty, and the
balance is close, but this courts previous decisions and the
decisions of the United States Supreme Court concerning effective
representation provide guidance. Over thirty years ago, the
Supreme Court stated, It has long been recognized that the right
to counsel is the right to the effective assistance of counsel.40
Likewise, we have recognized the right to effective
representation where representation is guaranteed,41 and the court
of appeals has stated that courts must vigilantly protect this
right to effective representation.42 Like the court of appeals,
we find persuasive the reasoning of the Supreme Court of
Connecticut that it would be absurd [for a defendant] to have the
right to appointed counsel who is not required to be competent.43
Given that a right to counsel would be meaningless if that
counsel were not effective, we hold that the due process clause
of the Alaska Constitution requires that a defendant be given a
chance to challenge the effectiveness of counsel in a second
petition for post-conviction relief.
We conclude, therefore, that the burden on the state is
not enough to overcome a defendants right to effective
representation and the risk that that right would be violated if
the defendant were unable to challenge an attorneys
effectiveness. Furthermore, the four-part test imposed by the
court of appeals upon a defendant raising an ineffective counsel
claim will tend to screen out frivolous claims. We conclude that
the right to fair proceedings requires effective counsel at those
proceedings.
3. The extent of the federal due process right to
counsel does not affect the extent of the Alaska
due process right to counsel.
The state argues that the due process right to counsel
under the federal Constitution is not as expansive as the court
of appeals found it to be in this case. The state cites Ross v.
Moffitt,44 Pennsylvania v. Finley,45 and Coleman v. Thompson,46
arguing that these cases hold that there is no federal right to
counsel in a post-conviction relief proceeding and that there can
be no challenge to the effectiveness of representation in such
proceedings.
The reach of the federal due process clause in post-
conviction relief litigation is irrelevant to this case. We
decide this case under the Alaska Constitution, not the federal
Constitution.47
B. The Petition for Review of the Question Whether Due
Process Requires the Appointment of Counsel To Assist
in Prosecuting an Ineffective Assistance of Counsel
Claim Was Improvidently Granted.
The court of appeals decided that the question of
appointing counsel to assist Grinols in presenting his second
post-conviction relief claim (that his counsel on his first post-
conviction claim was ineffective) should be left to the superior
court to decide. Upon further consideration, we conclude that we
improvidently granted review of this question.48 Accordingly, we
decline to consider it further here.
V. CONCLUSION
Because a defendant has a constitutional right to
effective counsel in a first application for post-conviction
relief, that defendant must be given the opportunity to challenge
the effectiveness of counsel in a second petition for post-
conviction relief. We therefore AFFIRM the decision of the court
of appeals on that issue and decline to address the appointment
of counsel for indigent defendants in such proceedings.
_______________________________
1 The facts of this case are drawn from the opinion in
the court of appeals, Grinols v. State, 10 P.3d 600 (Alaska App.
2000).
2 The court of appeals thus reversed the superior courts
denial of relief under AS 12.72.020(a)(6) and remanded for
further proceedings in the trial court. Id. at 619-20.
3 Accordingly, the court of appeals reversed the superior
court and remanded for further proceedings. Id.
4 Id.
5 Id.
6 Alaska Supreme Court Order No. 9940 (July 5, 2001).
7 Id.
8 Leisnoi, Inc. v. Stratman, 960 P.2d 14, 17 (Alaska
1998).
9 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
10 Grinols titles these sections Post-Conviction
Ineffectiveness; The Affirmative Defense of Reasonable Mistake of
Age; Procedural State Terrorism Resulting in Ineffective
Assistance of Counsel; Probation and Parole Procedural State
Terrorism; Alaska Statutes and Legislation and State Procedural
Terrorism: Unreasonable Punishments Imposed Against the Family;
Unreasonable Legislative Statutes Oppressive Requirements for
Classifications.
11 Alaska R. App. P. 305(a)(1) provides:
Unless the order granting a hearing provides
otherwise, hearing is granted as to all
points raised in the petition (see Rule
303(b)(4))[.] (Emphasis added.)
12 372 U.S. 335 (1963).
13 425 P.2d 247 (Alaska 1967).
14 Id. at 255.
15 Id.
16 Id. at 256 (Rabinowitz, J., concurring).
17 Id.
18 Id.
19 516 P.2d 396 (Alaska 1973).
20 Id. at 399 (summarizing the holding in Nichols).
21 Id.
22 Id. (emphasis added).
23 518 P.2d 85 (Alaska 1974).
24 Id. at 90 n.14.
25 Id. at 88 n.2.
26 755 P.2d 406 (Alaska App. 1988), superceded on other
grounds by rule as stated in Griffin v. State, 18 P.3d 71 (Alaska
App. 2001).
27 Id. at 407-08.
28 Id. at 410 (Bryner, C.J., concurring).
29 Only Chief Justice Nesbett, the third member of what
was at the time a three-member court, disagreed with the holding
that the right to representation was constitutionally-based.
Nichols, 425 P.2d at 256.
30 516 P.2d at 399.
31 Id.
32 Hertz, 755 P.2d at 410 (Bryner, C.J., concurring).
33 Alaska Const., art. I, 7.
34 424 U.S. 319 (1976).
35 In re K.L.J., 813 P.2d 276, 279 (Alaska 1991).
36 Id. (quoting Keyes v. Humana Hosp. Alaska, Inc., 750
P.2d 343, 353 (Alaska 1988)).
37 See supra Part IV.A.1.
38 AS 18.85.100(c) provides, in part:
An indigent person is entitled to
representation under (a) and (b) of this
section for purposes of bringing a timely
application for post-conviction relief under
AS 12.72. An indigent person is not entitled
to representation under (a) and (b) of this
section for the purposes of bringing
(1) an untimely or successive
application for post-conviction relief under
AS 12.72[.]
39 AS 12.72.020(a)(6) provides:
A claim may not be brought under AS 12.72.010
[post-conviction relief] or the Alaska Rules
of Criminal Procedure if a previous
application for post-conviction relief has
already been filed under this chapter or
under the Alaska Rules of Criminal Procedure.
40 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
41 Risher v. State, 523 P.2d 421, 423 (Alaska 1974) (The
assistance must be effective to be of any value.).
42 Johnson v. State, 24 P.3d 1267, 1267 (Alaska App.
2001).
43 Grinols v. State, 10 P.3d 600, 619-20 (Alaska App.
2000) (quoting Iovieno v. Commr of Corrs., 699 A.2d 1003, 1010
(Conn. 1997)) (alteration in original).
44 417 U.S. 600 (1974).
45 481 U.S. 551 (1987).
46 501 U.S. 722 (1991).
47 Because there is no federal right to counsel in post-
conviction relief proceedings, Pennsylvania v. Finley, 481 U.S.
551, 555-56 (1988), there is no federal challenge to the
effectiveness of that counsel. Coleman v. Thompson, 501 U.S.
722, 752 (1991). But because the federal Constitution does not
govern state due process analysis of the right to challenge the
effectiveness of counsel appointed by the state in post-
conviction relief litigation, it is irrelevant to our resolution
of this case on state constitutional grounds.
48 We note that both the state and the Public Defender
Agency agree in their briefing to this court that the court of
appealss resolution of this issue was correct.
