Court of Appeals of AlaskaDec 15, 2004
Court of Appeals No. A-8659 (Alaska Ct. App. Dec. 15, 2004)

Court of Appeals No. A-8659.

December 15, 2004.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge, Trial Court No. 4FA-03-144 CI.

Burns J. Frank, pro se, Florence, Arizona, Appellant.

Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.

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



Burns J. Frank was convicted of second-degree murder for killing Richard John with a knife. We affirmed Frank's conviction on direct appeal.

AS 11.41.110.

Frank v. State, Alaska App. Memorandum Opinion and Judgment No. 4698 at 2 (Apr. 30, 2003), 2003 WL 1987850 at *1.

Frank applied for post-conviction relief and an attorney was appointed to represent him. Frank's attorney filed a certificate under Criminal Rule 35.1(e)(2)(B) stating that he should be allowed to withdraw from the case and that Frank's application did not allege a colorable claim for relief.

The State concedes that on one of Frank's claims, the certificate filed by Frank's attorney does not satisfactorily explain why the attorney concluded that Frank had no arguable claim for post-conviction relief. We have reviewed the certificate, and we conclude that the State's concession is well-founded. Also, the State pointed out that the superior court did not inform Frank that the court intended to allow the attorney to withdraw and that the court intended to dismiss the application — a step required by Criminal Rule 35.1(f)(2). Thus, Frank did not have the opportunity to comment on the court's intended action. Because of these shortcomings, we vacate the dismissal of Frank's application and remand for further proceedings.

See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently assess the State's concession of error in a criminal case).


Alaska Criminal Rule 35.1(e)(2)(B) declares that if an appointed attorney, after investigating the case, concludes that the applicant has no non-frivolous claim for post-conviction relief, the attorney must file a certificate declaring this fact. However, when an attorney files this certificate, Criminal Rule 35.1(f)(2) requires the superior court to independently assess the potential merits of the defendant's case.

In Griffin v. State, we discussed the obligations placed on an appointed attorney in these circumstances. We concluded that it was impossible for the superior court to carry out its duty unless the attorney's certificate contained substantially more than a bare-bones assertion that the defendant has no arguable claims for relief:

18 P.3d 71 (Alaska App. 2001).

[I]f the [defendant's] attorney is permitted to file a certificate containing only the four bare assertions listed in [Criminal] Rule 35.1(e)(2)(B)(i)-(iv) . . ., it will be impossible for the trial court to perform the independent assessment required by Rule 35.1(f)(2).

. . .

In order for the court to perform its role under Rule 35.1(f)(2) — and thereby fulfill its duty to make sure that indigent litigants do in fact receive zealous investigation and presentation of any colorable claims for post-conviction relief — the attorney seeking to withdraw from the case must provide the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous. Only then can the court meaningfully assess and independently evaluate the attorney's assertion that the petitioner has no arguable claim to raise.

To reconcile Rule 35.1(e)(2)(B) with Rule 35.1(f)(2), and to avoid the constitutional problems that would arise if we interpreted Rule 35.1(e)(2)(B) narrowly, we hold that the "certificate" described in Rule 35.1(e)(2)(B) must fully explain why the attorney believes that the petitioner has no colorable claim to post-conviction relief.

Id. at 76-77.

In addition, counsel must certify "that the application cannot be amended to assert one or more colorable claims for relief."

Id. at 75.

If counsel files such a certificate, and the court agrees that the applicant is not entitled to relief, the court is required to notify the applicant of its intention to permit counsel to withdraw and to dismiss the application and to explain its reasons for doing so. The court must also give the applicant an opportunity to reply to the proposed withdrawal and dismissal.


The State points out that the superior court did not give Frank an opportunity to respond to his attorney's certificate and the court's intention to grant the State's motion to dismiss the application. But the State contends that the court's failure to notify Frank is unimportant with respect to five of Frank's claims because those claims are not colorable, cannot be amended to allege colorable claims, and because Frank failed to raise this argument in his appellate brief.

When a party fails to adequately brief a claim on appeal, that claim is ordinarily waived. Although we require pro se litigants to properly brief issues they raise, submissions of pro se litigants are held to less stringent standards than we would apply to a lawyer.

See Alaska R. App. P. 212(c)(1)(I); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978).

See Wilkerson v. State, Dep't of Health and Soc. Servs., 993 P.2d 1018, 1021-22 (Alaska 1999).

We note that Frank originally applied for post-conviction relief pro se and is now appearing in this appeal pro se. We also note that the superior court provided Frank with an interpreter at trial to help him communicate and to understand the proceedings. For these reasons, and because the superior court did not follow the procedure established in Criminal Rule 35.1(f)(2), we conclude that the superior court erred when it dismissed Frank's claim without allowing Frank the opportunity to reply to the proposed withdrawal and dismissal.

Also, the "no merit" certificate filed by Frank's post-conviction relief attorney analyzed the Miranda issue as a newly discovered evidence claim. But the State concedes that the Miranda issue pleads a claim of ineffective assistance of counsel.

The record demonstrates that Frank's pro se application alleges that his trial attorney did not file "pretrial motions for suppression of evidence." But the no-merit certificate filed by the attorney includes no discussion or analysis of the standard of competency of the trial attorney regarding pretrial motions and no discussion or analysis of the potential merit of any suppression motion including the Miranda issue. Thus, we agree with the State that the no-merit certificate did not address the merit of Frank's claim that his attorney was not competent regarding a pretrial motion.

See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995).

Because the no-merit certificate did not correctly identify this issue, and thus did not discuss why the issue had no merit, and because the superior court did not independently discuss the claims, it is not possible to conclude that the superior court satisfied its independent duty to assess the potential merit of Frank's incompetent representation claim.

For the reasons discussed above, we VACATE the decision of the superior court and we reinstate Frank's application for post-conviction relief. Because Frank's appointed attorney did not analyze Frank's claim properly, the superior court should consider appointing Frank an attorney if he requests representation. We remand the case to the superior court for further proceedings consistent with this opinion.

See AS 18.85.100.

MANNHEIMER, Judge, concurring.

I agree that we must vacate the superior court's dismissal of Frank's petition for post-conviction relief. I write separately to explain more fully the problems in the post-conviction relief proceedings thus far.

The problems with the post-conviction relief attorney's investigation of Frank's claims

When an attorney is appointed to represent an indigent petitioner for post-conviction relief, if the attorney investigates the case and concludes that the petitioner has no colorable claims for relief, Alaska Criminal Rule 35.1(e)(2)(B) requires the attorney to file a certificate listing all of the potential claims that the attorney has considered and explaining why the attorney has concluded that these claims lack any arguable merit. Griffin v. State, 18 P.3d 71, 76-77 (Alaska App. 2001).

In Frank's case, his attorney filed the required certificate — but, on its face, the certificate (together with its supporting documentation) suggests that the attorney failed to fully investigate Frank's potential claims for relief.

Several of Frank's claims were based on allegations that he received ineffective assistance of counsel from his trial attorney. When a petitioner for post-conviction relief raises claims of ineffective assistance of counsel, the petitioner must either (1) obtain an affidavit from their trial attorney, addressing the various allegations of substandard performance, or else (2) explain why such an affidavit can not be obtained.

See Tazruk v. State, 67 P.3d 687, 689-690 (Alaska App. 2003).

In Frank's case, his post-conviction relief attorney asked the trial attorney to provide an affidavit addressing Frank's claims, but the trial attorney refused. The trial attorney wrote a letter stating that it was "simply not possible for [him] to write an affidavit in response to Mr. Frank's various claims." The trial attorney asserted that, "[g]iven the significant volume of discovery [at Frank's trial], the amount of work involved in [Frank's] case, the length of the trial, as well as my current heavy caseload, there [was] not sufficient time to recreate the rationale[s] [for] the decisions made in preparing this case and/or understanding Mr. Frank's assertions."

Normally, a post-conviction relief attorney who receives this kind of communication from the petitioner's trial attorney should apprise the court of the trial attorney's intransigence and should seek permission to proceed with the litigation, so that the trial attorney can be deposed or otherwise forced to respond to the petitioner's claims. But in the present case, Frank's attorney apparently dropped the matter — thus failing to perform his duty to investigate Frank's potential claims.

Moreover, it appears that, at least in one instance, Frank's post-conviction relief attorney failed to conduct a proper independent investigation of a potential claim for relief. One of Frank's claims was that his trial attorney had a conflict of interest. In the post-conviction relief attorney's certificate, he asserted that he investigated this claim by examining the trial court record; the attorney declared that "[t]here is nothing in the record to indicate that [the trial attorney] had a conflict that would have required his withdrawal under the Alaska Rules of Professional Conduct or [would have] prevented him from representing [Mr.] Frank."

But when claims of ineffective assistance of counsel are raised in a petition for post-conviction relief, one of the primary purposes of the litigation is to allow investigation and elucidation of matters outside the record — because the existing record generally will not contain the information needed to evaluate claims that the trial attorney performed incompetently or had a conflicting interest.

See Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988); Barry v. State, 675 P.2d 1292, 1296 (Alaska App. 1984).

And, finally, the State concedes that the post-conviction relief attorney's certificate fails to adequately explain why the attorney concluded that there was no arguable merit to Frank's Miranda claim ( i.e., the claim that Frank's trial attorney incompetently failed to seek suppression of evidence potentially tainted by a Miranda violation).

The problem that the superior court dismissed the petition without giving Frank a chance to respond to his post-conviction relief attorney's certificate

When an attorney files a certificate of "no arguable merit" under Criminal Rule 35.1(e)(2)(B), the superior court has a duty to examine the certificate (and its supporting documentation) and independently assess whether it is true (as the attorney asserts) that none of the petitioner's potential claims have any arguable merit. See Criminal Rule 35.1(f)(2). This duty is imposed not only by Rule 35.1(f), but also by the Constitution — to ensure "that the petitioner received zealous and competent representation" in the post-conviction relief litigation. Tazruk v. State, 67 P.3d 687, 690 (Alaska App. 2003). See Griffin v. State, 18 P.3d at 73; Smith v. Robbins, 528 U.S. 259, 279-280; 120 S.Ct. 746, 761; 145 L.Ed.2d 756 (2000).

If the superior court concurs with the attorney that none of the petitioner's potential claims for relief have any apparent arguable merit, and that the petition should be dismissed, Rule 35.1(f)(2) obliges the superior court to apprise the petitioner (personally) of the court's conclusion and to then give the petitioner an opportunity to respond to the attorney's certificate and the court's tentative decision to dismiss the petition. The superior court failed to do this in Frank's case.

The State acknowledges this procedural flaw in the superior court's handling of Frank's case, but the State urges us to ignore this problem. The State points out that Frank never objected to the superior court's failure to comply with Rule 35.1(f)(2), nor does Frank mention the superior court's error in his appellate brief.

Frank's failure to raise this procedural problem would normally preclude this Court from addressing it. But Frank and all other petitioners for post-conviction relief in this situation are litigating under a severe disadvantage. Once a post-conviction relief attorney files the certificate of "no arguable merit", petitioners are left without a lawyer to represent their interests. If the superior court concurs with the attorney's certificate and tentatively decides to dismiss the petition for post-conviction relief, the petitioner must respond to the impending dismissal pro se. Moreover, if the superior court does indeed dismiss the case, and the petitioner wishes to appeal the superior court's decision, the petitioner apparently must again proceed pro se.

Under these circumstances, it would be unconscionable for this Court to knowingly ignore the procedural error in this case. A superior court's violation of Criminal Rule 35.1(f)(2) goes to the heart of the petitioner's right to be heard. This Court is obliged to protect that right even though the petitioner, untrained in the law, does not recognize that the right was abridged.


For these reasons, I agree that the superior court's decision in this case must be vacated. The superior court must renew its consideration of the post-conviction relief attorney's certificate of "no arguable merit" — first, because Frank's trial attorney has never responded to Frank's claims, and second, because the certificate appears to be facially deficient in at least two respects (to wit, the investigation of the conflict of interest claim and the Miranda claim).