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Pomeroy v. State (5/20/2011) ap-2306

Pomeroy v. State (5/20/2011) ap-2306

                                               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 @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

RICHARD D. POMEROY, 
                                                             Court of Appeals No. A-10588 
                                Appellant,                 Trial Court No. 3AN-09-5478 CI 
                                                                t/w 3AN-02-10469 CR 
                        v. 
                                                                    O    P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                     No. 2306 - May 20, 2011 

                Appeal     from   the   Superior   Court,    Third   Judicial   District, 
                Anchorage, Philip R. Volland, Judge. 

                Appearances:      Richard D. Pomeroy, pro se, Anchorage, for the 
                Appellant.     Eric   A.   Ringsmuth,   Assistant   Attorney   General, 
                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 
                Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. 

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

                COATS, Chief Judge. 

                In 2005, Richard D. Pomeroy pleaded no contest to third-degree assault. 

He later filed a petition for post-conviction relief; this petition was dismissed by Superior 

Court Judge Philip R. Volland in early 2007. 

                Pomeroy initially filed an appeal challenging the dismissal of his petition, 

but he later voluntarily abandoned that appeal and, instead, filed a second petition for 

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

post-conviction relief. Judge Volland dismissed Pomeroy's second petition in September 

2009, and the case now in front of us is Pomeroy's appeal of the dismissal of that second 

petition. 

                Pomeroy contends that Superior Court Judge Philip R. Volland should not 

have    adjudicated    his  second    petition  because    Pomeroy     filed  a  timely   peremptory 

challenge of Judge Volland under Alaska Civil Rule 42(c)(1).  Pomeroy also argues that 

he received ineffective assistance of counsel during the litigation of his first petition for 

post-conviction   relief.    Finally,   Pomeroy   raises   numerous   attacks   on   his   underlying 

criminal conviction, based on the events surrounding the litigation of that criminal case. 

                For   the   reasons   explained   here,   we   hold   that   Judge   Volland   properly 

refused to honor Pomeroy's peremptory challenge.                We further hold that Pomeroy is 

estopped from asserting that he received ineffective assistance of counsel during the 

litigation of his first petition for post-conviction relief because he knowingly waived his 

right to counsel and chose to represent himself. 

                Finally, we hold that Pomeroy is not entitled to raise his remaining claims. 

Many of these claims are based on errors that allegedly occurred during the litigation of 

his underlying criminal case.  These claims were forfeited because Pomeroy pleaded no 

contest to the criminal charge.  The remainder of Pomeroy's claims are based on errors 

that allegedly occurred during the litigation of his first petition for post-conviction relief. 

Those claims were forfeited because Pomeroy filed an appeal of the superior court's 

dismissal of that first petition, but then Pomeroy voluntarily dismissed that appeal. 

                Pomeroy's peremptory challenge of Judge Volland 

                After Pomeroy's second petition for post-conviction relief was assigned to 

Judge Volland, Pomeroy filed a challenge to Judge Volland under Alaska Civil Rule 

42(c)(1).  Civil Rule 42(c)(1) states:  "In [any] action pending in the Superior or District 

                                                - 2 -                                            2306
 

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

Courts, each side is entitled as a matter of right to a change of one judge ... ."                 The rule 

further specifies that a party's right to peremptorily challenge a judge is waived if the 

party   knowingly   participates   before   that   judge   in   "[a]ny   judicial   proceeding   which 

concerns   the   merits   of   the   action   and   involves   the   consideration   of   evidence   or   of 
affidavits."1 

                 Judge Volland was the judge who decided Pomeroy's first petition for post- 

conviction      relief.   When      Pomeroy      challenged     Judge    Volland     in  the  second     post- 

conviction relief proceeding, Judge Volland denied the challenge on the basis of our 
decision in Plyler v. State.2       In other words, Judge Volland ruled that Pomeroy was not 

entitled to challenge him because he was the judge who presided over Pomeroy's prior 

post-conviction       relief   litigation   (litigation   involving    the   same    underlying     criminal 

conviction). 

                 In Plyler,   this   court   held   that   a   defendant   pursuing   a   petition   for   post- 

conviction relief is not entitled to peremptorily challenge the judge who presided over 
the   defendant's   underlying   criminal   case.3        Pomeroy   notes   that   his   case   presents   a 

different situation: although Judge Volland was the judge who presided over Pomeroy's 

first petition for post-conviction relief, Judge Volland was not the judge who presided 

over Pomeroy's underlying criminal case. Thus, strictly speaking, our decision in Plyler 

does not govern Pomeroy's situation. 

                 The   issue   here   is   whether   a   second   post-conviction   relief   application, 

challenging the same underlying criminal conviction but filed as a separate civil case, 

should be deemed a new "action" for purposes of Civil Rule 42(c)(1).  Or, phrased more 

    1   Alaska R. Civ. P. 42(c)(4)(i). 

    2    10 P.3d 1173 (Alaska App. 2000). 

    3   Id. at 1176. 

                                                    - 3 -                                                 2306 

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

case-specifically, the issue is whether Pomeroy waived his right to   challenge Judge 

Volland in the second post-conviction relief litigation when Pomeroy failed to challenge 

Judge Volland in the first post-conviction relief litigation. 

                 The Alaska Supreme Court and this court have consistently held   that a 

party's exercise of a peremptory challenge under Civil Rule 42, or a party's waiver of 

the right of peremptory challenge under Civil Rule 42, apply not only to the proceeding 

directly affected by the challenge or the waiver, but also to any other proceeding that is 
"ancillary to and a continuation of the underlying ... action."4 

                                                         5 
                 For example, in Gieffels v. State,  the defendant peremptorily disqualified 
the judge assigned to his felony case.6         The case was assigned to another judge, and the 

indictment was later dismissed because of insufficient evidence and prosecutorial error. 

The State then secured a second indictment on an identical charge.                     The defendant's 

arraignment on this new indictment was assigned to the original judge (the one who had 

been peremptorily challenged).            At this arraignment, the defendant noted his earlier 

peremptory challenge and demanded that the arraignment be assigned to a different 

judge.   The judge refused to honor the defendant's earlier peremptory challenge and, 
over objection, presided over the defendant's arraignment on the second indictment.7 

The     supreme     court   held  that   because    the  judge   had   been    preempted     in  the  prior 

    4   Staso v. State, Dep't. of Transp., 895 P.2d 988, 991 (Alaska 1995) (quoting Webber 

v.  Webber, 706 P.2d 329, 330 (Alaska App. 1985)). 

    5    552 P.2d 661 (Alaska 1976), disapproved of on other grounds by Miller v. State, 617 

P.2d 516 (Alaska 1980). 

    6   Id. at 663-64. 

    7   Id. 

                                                   - 4 -                                              2306
 

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

proceeding,   he      was   "automatically      disqualified    from    presiding"    at   the  subsequent 
proceeding "in which the same charges [were] at issue."8 

                 In McKinnon v. State,9   the supreme court held that a probation revocation 

proceeding and a criminal prosecution stemming from one allegation of criminal conduct 
were part of the same action for the purpose of peremptory challenges.10 And in Webber 

v. Webber,11 this court similarly held that a defendant in a criminal contempt proceeding 

was not entitled to peremptorily challenge the trial court judge who presided over the 

civil matter out of which the contempt charge arose because the contempt proceeding 
was a continuation of the civil matter.12 

                 The most significant support for Pomeroy's position is found in Staso v. 
State, Department of Transportation.13  In Staso, the Alaska Supreme Court decided that 

each side gets a new peremptory challenge under Civil Rule 42(c) when a civil suit is 

dismissed on procedural grounds and then refiled, even when the second complaint is 
identical    to  the   complaint     previously     dismissed.14     The     supreme     court   noted    the 

uncertainty that could be caused if a party's right to a new peremptory challenge hinged 
on whether the new complaint alleged significantly different counts or theories.15 

    8   Id . at 665.
 

    9   526 P.2d 18 (Alaska 1974).
 

    10  Id. at 25.
 

    11  706 P.2d 329.
 

    12  Id. at 330.
 

    13   895 P.2d 988.
 

    14  Id. at 992.
 

    15  Staso, 895 P.2d at 990 n.4. 
 

                                                   - 5 -                                               2306
 

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

                 The Staso decision could be read to establish an invariable rule that parties 

are entitled to a new peremptory challenge   under Civil Rule 42(c) whenever a civil 

action is refiled and is given a new court number.  But we have not interpreted Staso in 

such a broad fashion. 

                 In Plyler, this court discussed the Staso decision, and we rejected the notion 

that, under Staso, parties invariably are entitled to a new peremptory challenge every 

time a related court filing is given a different file number: 

                         We do not interpret Staso as creating a hard-and-fast 
                 rule for all situations in which related proceedings are given 
                 separate court numbers.          Rather, we read Staso in a more 
                 limited   fashion: ... in the particular context of refiled civil 
                 actions,    the  public   policy    favoring    continuity    in  judicial 
                 decision-making   was   outweighed   by   the   policy   of   giving 
                 litigants clear advance notice of their rights.16 

                 We followed the reasoning of the earlier cases on this subject, and we 

applied the principle that collateral proceedings are not considered to be "new" actions 

for purposes of the peremptory challenge rule.             Specifically, in Plyler, we held that the 

parties to post-conviction relief proceedings are not entitled to peremptorily challenge 
the judge who presided over the underlying criminal action.17 

                 More recently, in State v. Galbraith,18 we adhered to this principle again. 

Galbraith involved an indictment that was dismissed after the judge found the defendant 
to be incompetent to stand trial.19        The State later refiled the same charges (with a new 

case number) after the State concluded that the defendant had regained his competency. 

    16  Plyler, 10 P.3d at 1176. 

    17  Id. 

    18   199 P.3d 1216 (Alaska App. 2009). 

    19  Id. at 1217. 

                                                   - 6 -                                                2306 

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

When this new indictment was assigned to the judge who had presided over the initial 

proceedings (and who had found the defendant to be incompetent), the State attempted 
to exercise a peremptory challenge against this judge.20 

               We acknowledged that Staso might be read to support the State's position, 

but we again adhered to the reasoning we employed in Plyler. We held that the renewed 

proceedings on the indictment were so significantly related to the earlier proceedings that 

the parties were not entitled to a new round of peremptory challenges. Thus, because the 

State did not challenge the judge during the initial proceedings, the State was prohibited 
from challenging the judge during the renewed proceedings on the same charges.21 

               We now hold that this same reasoning applies to Pomeroy's case.            As we 

recognized in Plyler, when a defendant attacks a criminal conviction by filing a petition 

for post-conviction relief, the post-conviction relief proceeding - although a separate 

civil action - is collateral to the original criminal case.        We held in Plyler that the 

original criminal case and the post-conviction relief case are to be treated as a single 

action for purposes of the peremptory challenge rule.         We now conclude that when a 

defendant files a second petition for post-conviction relief, attacking the same underlying 

criminal conviction, that second petition should also be considered to be the same action 

as the original criminal case and the prior post-conviction relief litigation. 

               In Pomeroy's case, he allowed his first post-conviction relief application 

to be litigated in front of Judge Volland.  Pomeroy did not challenge Judge Volland, and 

Judge Volland was the one who eventually entered the final judgment in that litigation. 

Pomeroy thus waived his right to peremptorily challenge Judge Volland in this second 

post-conviction litigation attacking the same underlying conviction. 

    20 Id. at 1217-18. 

    21 Id. at 1219. 

                                              - 7 -                                          2306 

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

                 Pomeroy's claim that he received ineffective assistance of counsel 
                 in his first post-conviction relief litigation 

                 One of Pomeroy's claims in his second petition for post-conviction relief 

is   that   he   received   ineffective   assistance   of   counsel   during   the   litigation   of   his   first 

petition for post-conviction relief.        In order to explain why the superior court correctly 

rejected this claim, we must recount the procedural history of Pomeroy's first petition 

for post-conviction relief. 

                 Pomeroy's first petition for post-conviction relief was dismissed by the 

superior court in early 2007, and Pomeroy filed an appeal of this dismissal: Pomeroy v. 

State, Court of Appeals File No. A-9965. 

                 While     Pomeroy's      appeal    was    pending,    this  court   became     aware     that 

(1)  Pomeroy       had   litigated   that   first   petition  for  post-conviction     relief   without   the 

assistance of counsel, and (2) the superior court never asked Pomeroy whether he was 
willing to waive his right to counsel.22          We therefore remanded Pomeroy's case to the 

superior court, directing the superior court to offer Pomeroy the opportunity to ask for 

counsel and, with the assistance of counsel, the opportunity to completely relitigate his 
petition for post-conviction relief.23 

                 In   the   superior   court,   Pomeroy   initially   asked   for   counsel,   and   Judge 
Volland appointed the Office of Public Advocacy to represent him.24                      But on June 25, 

2007,     Pomeroy      filed  a  pro   se   pleading    in  this  court   in   which    he  expressed      his 

dissatisfaction with his court-appointed attorney.             In his motion to this court, Pomeroy 

    22  See   Grinols   v.   State,   74   P.3d   889,   894   (Alaska   2003)   (holding  that   the   Alaska 

Constitution guarantees the assistance of counsel to defendants pursuing their first petition 
for post-conviction relief). 

    23   Corrected Order at 2, Pomeroy v. State, No. A-9415 (April 13, 2007). 

    24   Order at 1, Pomeroy v. State, No. A-9965 (July 11, 2007). 

                                                    - 8 -                                               2306
 

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

stated that he did not wish to relitigate his post-conviction relief claims in the superior 

court.  Instead, Pomeroy  asked this court to allow him to proceed directly to the appeal 

of Judge Volland's dismissal of those claims.             In addition, Pomeroy asked this court to 
let him prosecute the appeal pro se.25 

                 In response to Pomeroy's pleading, this court again remanded Pomeroy's 

case to the superior court to make sure that Pomeroy was indeed willing to waive his 
right to counsel.26 

                 Pursuant to our second remand order, the superior court held a hearing to 

ascertain Pomeroy's wishes.  After the superior court expressly advised Pomeroy of the 

benefits of counsel and the dangers of self-representation, Pomeroy reiterated that he 

wished to waive his right to counsel, that he wished to forego any relitigation of his post- 

conviction relief claims in the superior court, and that he wished to proceed directly to 
his appeal of the superior court's judgment.27            (As we explain later in this opinion, this 

appeal was later dismissed at Pomeroy's request.) 

                 To summarize this procedural history: The superior court committed error 

by allowing Pomeroy to litigate his petition for post-conviction relief pro se without first 

obtaining Pomeroy's knowing waiver of his right to counsel.                    But when this error was 

brought to light, Pomeroy was given two opportunities to assert his right to counsel and 

to completely relitigate his post-conviction relief claims, this time with the assistance of 

counsel.    Pomeroy declined these opportunities and, instead, he chose to let the results 

of the superior court litigation stand. 

    25  Id. at 2.
 

    26  Id. at 4-5.
 

    27  Report to Appellate Court at 1-2, Pomeroy v. State, No. A-9965 (Aug. 13, 2007).
 

                                                   - 9 -                                                2306 

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

                We acknowledge that when Pomeroy waived his right to counsel during the 

remand proceedings in the superior court, he informed Judge Volland that his waiver was 

prospective only: 

                        Mr. Pomeroy :   I would like to make a statement that I 
                did not - I want to make sure that [my waiver is] from this 
                date   forward   -   for   the   [purposes   of]   appeal   ...   that   I'm 
                waiving   my rights to [the assistance of] counsel.             I'm not 
                [saying] that I waive my rights during the ... process of the 
                [post-conviction relief] application.         [In] other words, when 
                I filed the application, when I asked for an attorney it, was 
                denied, relitigated.     [sic]   Now we're moving forward, [but] 
                I'm not waiving my right to assistance of counsel during the 
                litigation of the [post-conviction relief] application; put it that 
                way.    ... I want to make sure the Court understands this. 

                         The Court:     I understood that ... to be the case. 
 

                        Mr. Pomeroy :       Yeah, okay.      ... I just want to make
 
                sure that ... I'm not waiving - going back and waiving some 
                [deprivation of] right that [already] happened, you know. 

                Based on this colloquy between Pomeroy and Judge Volland, it appears that 

Pomeroy may have wanted to preserve his right to argue on appeal - that is, in the 

appeal     of  Judge   Volland's     decision    to  dismiss   Pomeroy's first      petition   for  post- 

conviction relief - that he had been wrongfully deprived of the assistance of counsel 

when he litigated that first petition. 

                But although Pomeroy may have wished to preserve this point on appeal, 

he also (at the same hearing) voluntarily relinquished the opportunity to relitigate his first 

post-conviction relief petition with the assistance of counsel.  In other words, Pomeroy 

knowingly declined the only relief that he would have been entitled to, had he prevailed 

on this claim of error. 

                                                 -  10 -                                            2306
 

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

                Moreover, as we explain later in this opinion, Pomeroy subsequently chose 

to voluntarily withdraw his appeal of the superior court's dismissal of his first petition 

for post-conviction relief. In other words, even though Pomeroy may have preserved this 

issue   for   appeal   when   he   appeared   in   front   of   Judge   Volland   on   August   3,   2007, 

Pomeroy ultimately decided not to pursue this appellate claim (or any others); instead, 

he voluntarily dismissed his appeal in early 2009. 

                By these actions, Pomeroy retrospectively ratified his pro se litigation of 

his first petition for post-conviction relief. And because Pomeroy knowingly waived the 

assistance of counsel to help him litigate that first post-conviction relief application, he 

is now barred from arguing that his self-advocacy in that litigation was ineffective. 

                When a defendant knowingly waives his right to counsel and chooses to 

represent himself, the defendant may not later obtain relief on the basis that his self- 

representation was incompetent when judged against the standard of practice expected 
of criminal defense attorneys.28 

                For these reasons, the superior court correctly rejected Pomeroy's claim that 

he received ineffective assistance of counsel during the litigation of his first petition for 

post-conviction relief. 

                Pomeroy's remaining claims 

                Many of Pomeroy's remaining claims involve errors that allegedly occurred 

during the litigation of his underlying criminal case - i.e., errors that occurred before 

    28  See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8, 79 L. Ed. 

2d 122 (1984)   ("A   defendant who exercises his right to appear pro se  cannot thereafter 
complain that the quality of his own defense amounted to a denial of 'effective assistance of 
counsel.'") (quoting Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 2541 n.46, 
45 L. Ed. 2d 562 (1975).  Accord State v. Russell, 858 P.2d 674, 679-80 (Ariz. App. 1993); 
State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). 

                                                  -  11 -                                            2306
 

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

he   pleaded     no  contest.    A    defendant     who    pleads   guilty   or  no   contest    waives    all 

non-jurisdictional errors that may have been committed in the lower court proceedings 
before the entry of the defendant's plea.29          Thus, the superior court correctly rejected all 

of these claims of error. 

                 Pomeroy       also  raises   many     other   claims   that  involve    errors   allegedly 

committed during the litigation of his first petition for post-conviction relief. All of these 

claims could have been raised in Pomeroy's appeal of the superior court's dismissal of 

his first petition.   However, Pomeroy voluntarily dismissed that appeal while it was in 

the briefing stage.     Here are the details of that procedural history: 

                 After    the  superior    court   dismissed     Pomeroy's       first  petition  for   post- 

conviction relief, he filed a pro se appeal of the superior court's decision.                  As we have 

already explained, we realized while Pomeroy's appeal was pending that he had never 

validly waived his right to counsel during the first post-conviction relief litigation, so we 

gave   Pomeroy   the   opportunity   to   relitigate   that   first   petition   with   the   assistance   of 

counsel.     Pomeroy   ultimately   decided   to   waive   the   assistance   of   counsel,   to   waive 

relitigation of his post-conviction relief claims, and to simply proceed with his appeal. 

                 But in early 2009, Pomeroy filed a motion asking this court to stay all 

further proceedings in his appeal while he litigated a second petition for post-conviction 

relief.  In his motion, Pomeroy indicated that he intended to argue in his second petition 
that he was denied his right to counsel during the litigation of his first petition.30 

    29   Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974); Tyler v. State, 24 P.3d 1260, 

1262 (Alaska App. 2001); Bobby v. State, 950 P.2d 135, 139 (Alaska App. 1997); Miles v. 
State, 825 P.2d 904, 905 (Alaska App. 1992). 

    30  Order at 1-2, Pomeroy v. State, No. A-9965 (Feb. 3, 2009). 

                                                   -  12 -                                               2306 

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

                 This court denied Pomeroy's motion to stay the appeal.31                  (The denial of 

Pomeroy's motion to stay the appeal did not prevent Pomeroy from filing his proposed 

second petition for post-conviction relief; it simply meant that the two cases would be 

litigated simultaneously.) 

                 Six   weeks   later, on March 23, 2009, with his reply brief still pending, 

Pomeroy filed a motion to withdraw his appeal.  In this motion, Pomeroy informed this 

court   that   he   had,   indeed,   filed   a   second   petition   for   post-conviction   relief,   and   he 

asserted that "it [was] in the best interest of justice, and [in the interest of his] family[,] 
that appellant withdraw [this appeal]."32 

                 In accordance with Pomeroy's request, this court dismissed his appeal.33 

                 By withdrawing his appeal, Pomeroy relinquished his right to challenge 

any errors that the superior court might have committed during the litigation leading up 

to   the   dismissal   of   his   first   petition   for   post-conviction   relief. As   stated   in   Alaska 

Criminal Rule 35.1(b), the remedy of post-conviction relief "is not a substitute for ... any 

remedy incident to the proceedings in the trial court," nor is it a substitute for "direct 

review of the sentence or conviction."             In other words, a defendant can not use post- 

conviction relief as a method for raising claims that could have been raised on direct 

appeal. 

                 This principle most often comes into play when a defendant attempts to 

raise   claims   in   post-conviction      relief   litigation  that   could   have   been   raised   in  the 

defendant's direct appeal of their criminal conviction.  As stated in AS 12.72.020(a)(2), 

    31  Id. at 2.
 

    32  Affidavit of Counsel [sic] at 1-2, Pomeroy v. State, No. A-9965 (March 23, 2009).
 

    33  Order at 1, Pomeroy v. State, No. A-9965 (April 3, 2009).
 

                                                   -  13 -                                               2306 

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

a claim can not be raised in post-conviction relief litigation "[if] the claim was, or could 

have been ... , raised in a direct appeal [of] ... the conviction." 

                 The same principle applies to Pomeroy's litigation.   Pomeroy attempted to 

use a second petition for post-conviction relief as a means of challenging errors that 

allegedly occurred during the litigation of his first petition for post-conviction relief.  But 

the   proper   method   for   challenging   those   errors   was   to   appeal   the   superior   court's 

judgment in the first post-conviction relief case. 

                 Pomeroy filed an appeal, but then he voluntarily withdrew it.                  Pomeroy's 

voluntary withdrawal of his appeal did not give him the right to use a second petition for 

post-conviction relief as a substitute for his abandoned appeal.                  Moreover, AS 12.72.­ 

020(a)(6)   bars   defendants   from   seeking   post-conviction   relief   if   they   have   filed   a 

previous petition for post-conviction relief. 

                 For these reasons, the superior court correctly rejected all of these claims 

when they were raised in Pomeroy's second petition for post-conviction relief. 

                 (We have recognized   one exception   to   the rule that all claims   of   error 

arising during the litigation of a first petition for post-conviction relief must be raised on 

direct appeal of the judgment entered in that post-conviction relief action. The exception 

is that a defendant may file a second post-conviction relief petition to pursue a claim that 

the defendant's attorney incompetently litigated the first petition for post-conviction 
relief.34    This    exception     exists  because,   under     Alaska     law,   a  claim   of  ineffective 

assistance of counsel ordinarily can not be raised on direct appeal.35                   But, as we have 

already   explained,   Pomeroy   waived   his   right   to   relitigate   his   first   petition   for   post­ 

     34  Grinols v. State, 10 P.3d 600 (Alaska App. 2000), aff'd, 74 P.3d 889 (Alaska 2003). 

     35  Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 

 1295-96 (Alaska App. 1984). 

                                                   -  14 -                                                2306 

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

conviction relief with the assistance of counsel; instead, he chose to ratify his pro se 

litigation of that first petition for post-conviction relief.  Under these circumstances, 

Pomeroy is not allowed to argue that he represented himself ineffectively.) 

               Conclusion 

              The judgment of the superior court is AFFIRMED. 

                                            -  15 -                                      2306
 
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