COATS, Chief Judge.
Richard Charley was convicted of murder in the second degree. His conviction was affirmed on appeal. Several years later, Charley filed an application for post-conviction relief. Superior Court Judge Charles Pengilly ultimately dismissed the application. On appeal, Charley agrees that Judge Pengilly correctly concluded that Charley's application did not "offer any explanation for the fact that the application was filed well outside the relevant statute of limitations, and was therefore facially and fatally untimely." However, Charley argues that under Tazruk v. State, Judge Pengilly had the duty to determine that Charley's counsel effectively pursued the application. We conclude that Judge Pengilly could properly dismiss the application on the ground that it did not comply with the statute of limitations. We also conclude that Tazruk did not require Judge Pengilly to determine, before dismissing the application, whether Charley's counsel performed competently.
67 P.3d 687 (Alaska App. 2003).
Factual and procedural background
Richard Charley was convicted of murder in the second degree for killing Daniel Frank near Northway on September 12, 1991. Charley appealed to this Court. We affirmed his conviction on January 26, 1994. Several years later, on May 1, 2003, Charley filed an application for post-conviction relief. In his application, Charley claimed that he had been denied a fair trial because the jurors in his case were prejudiced against Alaska Natives. Charley is an Alaska Native. Charley also argued that his trial attorney had been ineffective. As part of his application, Charley filed an affidavit from the foreman of his jury dated July 25, 1994. In the affidavit, the jury foreman stated that, during jury deliberations, several of the jurors had expressed prejudice against Alaska Natives. The foreman alleged that this prejudice influenced the jury's verdict. He contacted Charley's attorney a few months after the verdict to explain his feelings about the verdict. The court appointed the Office of Public Advocacy (OPA) to represent Charley on his post-conviction relief application on August 13, 2003.
AS 11.41.110(a)(1).
Charley v. State, Alaska App. Memorandum Opinion and Judgement No. 2854 (Jan. 26, 1994).
In response to Charley's application, the State filed a motion to dismiss. Among other things, the State noted that Charley's application had been filed after the statute of limitations had run. The State also claimed that Charley failed to set out a prima facie case of ineffective assistance of counsel. In response to the State's motion to dismiss, Judge Pengilly notified the parties of his intent to dismiss the application based on the State's motion. When OPA failed to respond, Judge Pengilly ordered OPA to show cause why it should not be held in contempt. J. John Franich, of OPA, then filed a motion to withdraw from Charley's case on the ground that an untimely application did not entitle Charley to representation. Judge Pengilly denied OPA's motion to withdraw. Judge Pengilly ultimately found Franich in contempt of court for his failure to file a timely response to the State's motion to dismiss. He ordered Franich to file a response within 14 days. Judge Pengilly told Franich that if he failed to meet the deadline, he would be fined $50 for every day that the response was late.
AS 12.72.020(a)(3)(A) and Chapter 79, § 40, SLA 1995.
AS 18.85.100(c)(1).
Franich filed an opposition to the motion to dismiss the application for post-conviction relief. In the opposition, Franich alleged that Charley's recent receipt of the jury foreman's affidavit precipitated his application for post-conviction relief. But Franich conceded that the foreman's affidavit was dated July 25, 1994 and filed with the superior court in 1994 in connection with Charley's successful motion to reduce his sentence. Franich further conceded that Charley attended court in December 1994 when, during the hearing on Charley's motion to reduce his sentence, the jury foreman testified consistently with his affidavit.
Nevertheless, Franich noted that Charley's post-conviction relief application included an affidavit in which Charley asserted that he had only recently received a copy of the jury foreman's affidavit. Franich argued that Charley's assertion established grounds for holding an evidentiary hearing to determine whether Charley had acted with due diligence in pursuing the petition for post-conviction relief.
Judge Pengilly rejected this argument and dismissed Charley's application for post-conviction relief as untimely.
On appeal, Charley's appellate attorney, David K. Allen, agrees that Judge Pengilly correctly determined that Charley's application "failed to offer any explanation for the fact that the application was filed well outside the relevant statute of limitations, and was therefore facially and fatally untimely." But he argues that, under this Court's decision in Tazruk v. State, Judge Pengilly had a duty to ensure that Charley had received effective assistance from Franich before dismissing the application.
67 P.3d 687 (Alaska App. 2003).
However, Tazruk is distinguishable. Tazruk, pro se, filed an application for post-conviction relief alleging several grounds. The attorney appointed to represent Tazruk gave notice that he intended to proceed on the claims that Tazruk had filed in his pro se application. Then, after the superior court dismissed Tazruk's application, on appeal, the attorney filed a brief conceding that the superior court correctly dismissed Tazruk's application.
Id. at 688-89.
Id. at 690.
We concluded that the record of the proceedings in the superior court established a prima facie case that the attorney had provided Tazruk with ineffective assistance of counsel. We noted that all of the claims that Tazruk listed in his pro se application were either facially meritless or facially inadequate to survive a motion to dismiss. When the State acknowledged this in its motion to dismiss, the attorney failed to act and did not oppose the motion to dismiss. Then, on appeal, the attorney filed a brief conceding that "no non-frivolous argument can be made against the trial judge's application of current Alaska law." Tazruk presented a case where the post-conviction relief applicant's attorney did not argue on behalf of his client, but instead argued that he could not advance a non-frivolous argument in support of his client. Whenever an attorney concludes that he cannot make a non-frivolous argument on behalf of his client, the law places special obligations on the attorney and the court to establish that the attorney has provided effective assistance of counsel.
Id. at 688.
Id. at 690.
Id. at 693.
See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), limited by Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Griffin v. State, 18 P.3d 71 (Alaska App. 2001); Alaska Criminal Rule 35.1(e)(2)(B).
In Charley's case, Franich, in the superior court and Allen, on appeal, have argued on behalf of Charley. Franich argued that Charley's failure to see the jury foreman's affidavit entitled him to a hearing to determine whether Charley could avoid the statute of limitations by establishing that this was newly-discovered evidence. However, to prevail on a claim of newly-discovered evidence, Charley had to show that he had acted with "due diligence." Since the jury foreman had filed his affidavit and had testified in a hearing where Charley was present, Judge Pengilly could properly determine that Charley did not present a prima facie case of due diligence.
See AS 12.72.020(b)(2).
On appeal, Allen does not contest Judge Pengilly's ruling. Rather he argues that, under Tazruk, Judge Pengilly had a duty to determine that Franich had provided effective assistance of counsel. Allen has not argued that Charley is not entitled to relief. He therefore has not brought himself into the area of law covered by Griffin and Tazruk, where the court must determine that the post-conviction relief applicant received effective assistance of counsel. Except where counsel argues that he cannot advance any non-frivolous argument on behalf of his client, we are to presume that an attorney's actions are competent. We hardly ever consider claims of ineffective assistance of counsel based on an appellate record because normally the appellate record is inadequate to meaningfully assess whether the attorney acted competently. Typically, questions of ineffective assistance of counsel must be raised in a separate post-conviction relief action.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
If Charley correctly asserts that he has received ineffective assistance of counsel in pursuing his application for post-conviction relief, he has a remedy. Under Grinols v. State, he can claim that he received ineffective assistance of counsel in pursuing his post-conviction relief application. This process provides a procedure where Charley can explore whether he received ineffective assistance of counsel. But the present record, unlike the record in Tazruk, simply does not establish a prima facie case that Charley received ineffective assistance of counsel.
74 P.3d 889, 894-95 (Alaska 2003).
The order of the superior court dismissing Charley's application for post-conviction relief is AFFIRMED.
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