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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. State (4/6/2012) sp-6661

Nelson v. State (4/6/2012) sp-6661

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DANIEL C. NELSON,                                   ) 

                                                    )   Supreme Court No. S-13100 

                        Petitioner,                 )   Court of Appeals No. A-8879/8899 


        v.	                                         )   Superior Court No. 1KE-00-00161 CI 


STATE OF ALASKA,                                    )   O P I N I O N 


                        Respondent.	                )   No. 6661 - April 6, 2012 


                Petition for Hearing in File No. A-8879 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, Michael A. Thompson, Judge. 

                Appearances: Michael J. Zelensky, Ketchikan, for Petitioner. 

                Nancy     R.   Simel,   Assistant    Attorney    General,    Office   of 

                Special Prosecutions & Appeals, Anchorage, and Daniel S. 

                Sullivan, Attorney General, Juneau, for Respondent.  Dan S. 

                Bair, Assistant Public Advocate, and Rachel Levitt, Public 

                Advocate, Anchorage, for Amicus Curiae Office of Public 


                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 

                Stowers,    Justices. [Christen, Justice, not participating.] 

                PER CURIAM. 


                A    prisoner   applied    for  post-conviction     relief,  alleging   35   claims    of 

ineffective assistance of trial counsel.       At a deposition trial counsel asserted the Fifth 

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Amendment   privilege   against   self-incrimination   regarding   his   representation   of   the 

applicant.   The superior court ultimately dismissed all but one post-conviction relief 

claim for failure to establish a prima facie case, and the court of appeals affirmed.  The 

applicant petitioned for our review to determine whether the ordinary presumption of 

defense   counsel's   competence   applies   when   counsel   invokes   the   Fifth   Amendment 

regarding the representation.      We determine it does, but note that an adverse inference 

may be drawn in the applicant's favor on specific disputed factual issues if warranted in 

an appropriate case.     With this clarification, we affirm the court of appeals' decision 

because this is not an appropriate case warranting such an inference. 


               In May 1996 a jury convicted Daniel Nelson of five counts of sexual abuse 

of minors. Ronald Hemby represented Nelson at trial.  The court of appeals affirmed the 

convictions on direct appeal.1     In March 2002 Nelson retained new counsel and filed a 

petition for post-conviction relief, alleging 35 claims of ineffective assistance by Hemby. 

               As a threshold condition for pursuing his ineffective assistance of counsel 

claims, Nelson was required to submit an affidavit from Hemby addressing Nelson's 

specific claims and Hemby's tactical choices regarding these claims.2            Hemby refused 

to provide an affidavit.  Hemby had retired and moved to Missouri, so Nelson's attorney 

traveled to Missouri to depose Hemby.           At the deposition Hemby invoked his Fifth 

        1      Nelson    v.   State ,   No.   6358,   1999  WL  33911988,   at   *6  (Alaska  App. 

Nov. 10, 1999) (unpublished).        Hemby did not represent Nelson on the direct appeal. 

Id. at *1. 

        2      See   Tall  v.  State,   25  P.3d  704,   708  (Alaska  App.   2001)   ("We    have 

repeatedly held that a defendant asserting ineffective assistance of counsel must provide 

the court with an affidavit from the former attorney, addressing the various claims of 

ineffective representation, or must explain why such an affidavit can not be obtained." 

(quoting Peterson v. State , 988 P.2d 109, 113 (Alaska App. 1999))). 

                                                -2-                                          6661

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Amendment privilege against self-incrimination and refused to answer any questions 

concerning his representation of Nelson.         During a break in the deposition, the parties 

contacted Superior Court Judge Michael A. Thompson, who conducted an unrecorded, 

ex parte telephone conversation with Hemby and upheld Hemby's invocation of the Fifth 

Amendment   privilege.3       Judge   Thompson   issued   no   findings   regarding   Hemby,   but 

excused Nelson from the affidavit requirement for his post-conviction relief petition. 

                On the State's motion Judge Thompson dismissed 34 of Nelson's 35 post- 

conviction relief claims for failure to state prima facie claims for relief.4  Nelson moved 

for summary judgment on the sole surviving claim, which Judge Thompson ultimately 


                Nelson appealed the dismissal of four claims to the court of appeals.5            As 

to three of these   claims, Nelson argued the superior court committed legal error by 

relying   on   the   presumption   of   competence   by   Nelson's   trial   counsel.  Specifically, 

Nelson   argued   the   presumption   of   competence   should   not   apply   when   trial   counsel 

        3       We are unable to discern the specific circumstances of the attorneys' call 

to   Judge   Thompson      or  why   there   is  no  record   of  the  discussion   between    Judge 

Thompson and Hemby.  We encourage the creation of an appropriate record of judicial 

participation in, and especially resolution of, litigants' out-of-court deposition disputes. 

        4       In post-conviction relief proceedings the applicant bears the initial burden 

of establishing a prima facie case of ineffective assistance of counsel. State v. Jones, 759 

P.2d 558, 569-70 (Alaska App. 1988). 

        5       The State cross-appealed the single grant of post-conviction relief.  The 

court of appeals remanded the grant of post-conviction relief for reexamination and 

explanation.  Nelson v. State , Nos. 8879/8899, 2007 WL 1098411, at *12 (Alaska App. 

Apr. 11, 2007) (unpublished).         On remand the superior court detailed its reason for 

granting summary judgment to Nelson and again granted post-conviction relief.  The 

court of appeals then affirmed the superior court's decision.  State v. Nelson, No. 8899, 

2008 WL 1914354 (Alaska App. Apr. 30, 2008) (unpublished). 

                                                 -3-                                           6661

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invoked the Fifth Amendment rather than answer questions regarding the representation. 

Because   this   argument   was   raised   for   the   first   time   on   appeal,   the   court   of   appeals 

required Nelson to show plain error.6 

                 The court of appeals was "not convinced that Judge Thompson committed 

any   error   at   all,   much   less   that   the   alleged   error   was   'plain.'   "7 The   court   rejected 

Nelson's implicit argument that Hemby's incompetence could be reasonably inferred 

from his invocation of the Fifth Amendment.8               The court stated "the fact remains that, 

under our law, no inference can be drawn from a witness's invocation of an evidentiary 

privilege."9    The court found the privilege assertion meant only that Hemby became 

unavailable as a witness, which "did not negate the presumption of attorney competence 

or   relieve   Nelson   of   the   concomitant   burden   of   affirmatively   proving   his   attorney's 

incompetence."10       Accordingly, the court of appeals concluded the superior court did not 

commit plain error. 

                 Nelson petitioned for our review, arguing the presumption of competent 

representation   should   not   apply   when   trial   counsel   invokes   the   Fifth   Amendment. 

Notwithstanding the "plain error" analysis relevant to Nelson's appeal to the court of 

appeals, we granted Nelson's petition for hearing on the following limited legal question: 

        6        "That     is,  [Nelson]    must    show     that  any    competent      judge    in  Judge 

Thompson's   position   would   have   recognized,   unprompted,   that   the   presumption   of 

attorney competence no longer applied after Hemby invoked the Fifth Amendment." 

Nelson , 2007 WL 1098411, at *6. 

        7        Id. at *7. 

        8        Id. 

        9        Id. at *8 (relying in part on Alaska Evidence Rule 512(a)). 

         10      Id. 

                                                    -4-                                               6661

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What effect does defense counsel's invocation of the Fifth Amendment privilege have 

on the competence presumption and burden of proof in a post-conviction relief claim 

based on ineffective assistance of counsel?          We invited the Office of Public Advocacy 

to participate as amicus curiae. 


                There is "a strong presumption of competence" when evaluating defense 

counsel's     conduct    in  a  post-conviction     relief  proceeding.11     To    rebut   this  strong 

presumption the applicant must present some "evidence ruling out the possibility of a 

tactical reason to explain counsel's conduct."12           If the presumption is not rebutted, an 

ineffective assistance finding is precluded.13          If it is rebutted, the applicant must then 

show counsel's incompetence contributed to a conviction.14                Because it found the law 

prevented any inferences to be drawn from a witness's privilege assertion, the court of 

appeals     concluded     that  "[t]he  only   pertinent    consequence"      of  Hemby's      privilege 

assertion   was   that   he   became   unavailable   as   a   witness,   which   "did   not   negate   the 

presumption of attorney competence or relieve Nelson of the concomitant burden of 

affirmatively proving his attorney's incompetence."15 

                We disagree with the court of appeals' statement that as a matter of law no 

        11      Jones , 759 P.2d at 569 (citing Strickland v. Washington, 466 U.S. 668, 689 


        12      Id.

        13      Id.

     Risher v. State , 523 P.2d 421, 424-25 (Alaska 1974). 

        15      Nelson , 2007 WL 1098411, at *8. 

                                                  -5-                                             6661

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adverse inference could be drawn from Hemby's invocation of the Fifth Amendment.16 

Post-conviction       relief  proceedings      are  civil  in nature.17     Evidence      Rule    512(a)'s 

prohibition against drawing inferences from a claim of privilege "do[es] not apply in a 

civil case with respect to the privilege against self-incrimination."18              The United States 

Supreme Court has stated "the Fifth Amendment does not forbid adverse inferences 

against   parties   to   civil   actions   when   they   refuse   to   testify   in   response   to   probative 

evidence offered against them."19          Although the Court was focused on parties to a suit, 

other federal courts have extended its conclusion to non-parties in civil proceedings.20 

                 At   oral  argument      the  State   conceded     that  in  a  post-conviction      relief 

proceeding based on ineffective assistance of counsel, counsel's privilege assertion as 

        16      Id. at *7-8 (relying on Evidence Rule 512(a)). 

        17       See   Hensel   v.   State,   604   P.2d   222,   230-31   (Alaska   1979)   ("The   post- 

conviction relief proceeding is not another trial; it is separate from the original criminal 

proceeding, and it is governed primarily by rules of civil procedure."); State v. Laraby, 

842 P.2d 1275, 1279 (Alaska App. 1992) ("[A] postconviction relief action is a civil 

proceeding; as such, it is subject to the normal rules governing civil cases."); cf. Alaska 

R. Crim. P. 35.1(g) (establishing "[a]ll rules and statutes applicable in civil proceedings" 

are available in post-conviction relief proceedings). 

                 The court of appeals recently applied this very proposition, stating that a 

post-conviction relief action "is a civil lawsuit brought by an already-convicted criminal" 

and   that   no   authority   had   been   offered   "to   support   the   proposition   that   the   Sixth 

Amendment right of confrontation applies to post-conviction relief litigation."  Lockuk 

v. State, No. 10499, 2011 WL 5027060, at *3 (Alaska App. Oct. 19, 2011). 

        18       Alaska R. Evid. 512(d). 

        19      Baxter v. Palmigiano , 425 U.S. 308, 318 (1976). 

        20       See, e.g., LiButti v. United States , 107 F.3d 110, 121-24 (2d Cir. 1997); 

FDIC v. Fid. & Deposit Co. of Md. , 45 F.3d 969, 978 (5th Cir. 1995); RAD Servs., Inc. 

v. Aetna Cas. & Sur. Co. , 808 F.2d 271, 275-76 (3d Cir. 1986). 

                                                    -6-                                              6661

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to specific actions in combination with a factual dispute about those actions may give rise 

to a permissible and relevant adverse inference.              We agree, emphasizing that a trial 

court's decision to draw an adverse inference from a non-party's invocation of the Fifth 

Amendment should be made on a case-by-case basis.21 

                But we do agree with the court of appeals that defense counsel's general 

invocation of a Fifth Amendment privilege regarding representation of an applicant does 

not   by   itself   rebut   the  presumption   of  or  shift   the  burden   of  proof   on  counsel's 

competence.  The "strength and cogency of the adverse inference should, of course, be 

tested against the other evidence in the case."22         Evidence of a privilege assertion void 

of context bears little to no weight in satisfying a party's evidentiary burden.23 

                Nelson must still have presented some evidence ruling out the possibility 

of a tactical reason explaining Hemby's conduct.24           Nelson offered no evidence that any 

specific actions by Hemby were incompetent under the particular circumstances of his 

case.  And although Judge Thompson found Hemby had a good faith basis for invoking 

the   Fifth   Amendment,   Nelson   failed   to   ask   Judge   Thompson   to   allow   question-by- 

        21      See, e.g., LiButti , 107 F.3d at 123 (setting forth four factors for trial courts 

to consider in deciding whether to permit an adverse inference to be drawn from a non- 

party's invocation of the Fifth Amendment); FDIC , 45 F.3d at 978 (finding whether a 

party should be barred from calling a non-party as a witness for the purpose of having 

him    exercise   his  Fifth   Amendment       right  requires   trial  courts  "to  evaluate    [such] 

situations on a case-by-case basis"). 

        22      LiButti , 107 F.3d at 124. 

        23      Id. ("[T]he claim of privilege will not prevent an adverse finding or even 

summary judgment if the litigant does not present sufficient evidence to satisfy the usual 

evidentiary burdens in the litigation." (quoting United States v. 4003-4005 5th Ave., 55 

F.3d 78, 83 (2d Cir. 1995))). 

        24      See Jones, 759 P.2d at 569. 

                                                  -7-                                            6661

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question    examination     that  might   have   focused   on  specific   actions  and   generated 

permissible adverse inferences.      Without any evidence of specific incompetent actions 

or any corroborating adverse inferences to be drawn from Hemby's invocation of the 

Fifth   Amendment,   Nelson   failed   to   rebut   the   presumption   that   Hemby   acted   with 


               Accordingly, as the court of appeals suggested, Judge Thompson did not 

commit error, let alone plain error. 


               With     our  clarification  regarding    defense   counsel's   assertion   of  Fifth 

Amendment rights, we AFFIRM the court of appeals' decision affirming the superior 

court's dismissal of Nelson's claims for post-conviction relief. 

                                                -8-                                           6661

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