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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


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,

          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.   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.


          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


          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


          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


          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


          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


          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


               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


          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


          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


          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


          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


     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.


          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.

     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

     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

     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.

     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.