Tazruk v. State , 2003 Alas. App. LEXIS 65 ( 2003 )

COATS, Chief Judge,

concurring.

A person who is convicted of a erime in Alaska has the right to apply for post-convietion relief¹ If indigent, the person is entitled to court-appointed counsel to investigate and litigate the post-conviction relief application.² If the court dismisses the application for post-conviction relief, the person is entitled to the assistance of court-appointed counsel to appeal that decision.³

In the present case, Tazruk's counsel filed a brief with this court in which he concedes that Tazruk had "no non-frivolous argument [that] can be made against the trial judge's application of current Alaska law." He

states that the "brief is filed pursuant to the procedure described by the United States Supreme Court in Anders v. California » ⁴

In Griffin v. State,⁵ we discussed the An-ders procedure and how it has been modified by the United States Supreme Court. Although under federal law the Amders procedure applies to an indigent's first appeal from his conviction, the principles also apply to an indigent's appeal of the denial of a post-conviction relief application in Alaska because any indigent is entitled to counsel for such an appeal. Under the principles espoused by Anders and subsequent supreme court decisions, we are not to allow an attorney to withdraw from a case and dismiss the client's appeal until we have independently assessed the case and "reached the conclusion that the appeal is frivolous." ⁶ Our independent review of Tazruk's case has led us to the conclusion that we cannot ascertain whether Tazruk has received effective assistance of counsel and whether Tazruk has no non-frivolous issues that he could raise in a post-conviction relief application.

Tazruk, pro se, filed his application for post-conviction relief setting out several claims. It is obvious from reading Tazruk's application that, standing alone, it did not state any ground that would be sufficient to state a claim for post-conviction relief, Yet Tazruk's counsel gave notice under Criminal Rule 35.1(e)(2)(A) that he would proceed on the original pro se application. When the State moved to dismiss, Tazruk's counsel did not oppose the State's motion. Although he was basically conceding the merits of the State's motion, Tazruk's attorney pointed out that the court had an independent duty to determine the merit of the State's motion.

Judge Greene dismissed Tazruk's application, stating that Tazruk had failed to make "a prima facie showing of entitlement to relief." On appeal, Tazruk's attorney filed an Anders brief in which he stated that "no non-frivolous argument can be made against the trial judge's application of current Alaska law." The State filed a brief also arguing that the trial court had properly determined that all of Tazruk's claims were frivolous.

It seems apparent to me on this record that Tazruk's counsel reviewed Tazruk's application for post-conviction relief and concluded that all of Tazruk's claims were frivolous. No competent attorney, looking at Tazruk's application for post-conviction relief, could conclude that this application, without some development of the issues, would survive a motion to dismiss. Faced with this situation, a competent attorney is required to review the facts and law underlying the defendant's application to determine if there are any potential grounds for relief. In the event that Tazruk's counsel concluded that there were no non-frivolous claims to raise on Tazruk's behalf, he was obligated to comply with Criminal Rule 85.1(e)(2)(B). That procedure, which we discussed in Griffin,⁷ sets out procedures designed to protect an indigent's right to the assistance of counsel in an application for post-conviction relief, Rule 35.1(e)(2)(B) requires counsel to file a certificate stating that the attorney:

(1) does not have a conflict of interest;

(ii) has completed a review of the facts and law in the underlying proceedings or action challenged in the application;

(iii) has consulted with the applicant and, if appropriate, with trial counsel; and

(iv) has determined that the application does not allege a colorable claim for relief.

In Griffin we concluded that the fourth clause required an attorney to explain his representation.⁸ We pointed out that Criminal Rule 35.1({)(2) required the court, when an indigent applicant's attorney filed a "no merit" certificate, to "independently assess whether 'it appears ... that the applicant is not entitled to relief. " ⁹ In order to allow the court to perform this duty, the attorney seeking to withdraw must provide the court with an explanation of the claims he considered and why he considered the claims to be frivolous:

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.¹⁰

It is obvious that the Griffin procedure requires a substantial effort on the part of an attorney who determines that his client's claims are frivolous. And, from the record in this case, it seems obvious to me that Tazruk's counsel wanted to avoid this procedure. Among other things, in his brief, after summarily conceding that Tazruk had no non-frivolous arguments, counsel devotes the majority of his opening brief to arguing that we should not extend Griffin to situations where counsel chooses to proceed on the grounds alleged in the pro se application already filed by the petitioner. But where the grounds alleged in the pro se application are patently frivolous and where counsel makes no attempt to claim otherwise, it is obvious that counsel is attempting to evade the procedure set forth in Criminal Rule 35.1(0)(2)(B) as described in Griffin. To allow this would be to neglect our duty to ensure that an indigent has received the right of effective assistance of counsel in pursuing his post-conviction relief claim on appeal.

In general, when an attorney is appointed to represent a client who has filed an application for post-conviction relief, the attorney has a duty to investigate whether there are any non-frivolous grounds to obtain post-conviction relief.¹¹ From my experience as a defense counsel, in most cases an attorney can find a non-frivolous issue to advance. If the attorney cannot, in many cases the client can be persuaded that there are no grounds for relief and can decide to not pursue the matter. But if the attorney concludes that there are no non-frivolous issues and the client insists on proceeding, the attorney can only withdraw by complying with Criminal Rule 35.1(e)(2)(B) as set out in Griffin.

We have recognized that the Griffin procedure is onerous. That is one reason why, in Hertz v. State,¹² we rejected the Anders approach and adopted a rule requiring the applicant's attorney to pursue the litigation even if the attorney believed that the litigation was frivolous.¹³ We concluded that this was a better way to protect an indigent's right to the effective assistance of counsel than the Anders procedure.¹⁴ But in Griffin, we concluded that the legislature could properly and constitutionally require another procedure.¹⁵ We concluded that Criminal Rule 35.1(e)(2)(B), as we interpreted that rule in Griffin, was an appropriate way for counsel to deal with applications for post-conviction relief when counsel could not find any non-frivolous issues to advance.¹⁶ From the record of the current case, it seems clear to me that Tazruk's counsel concluded that all of Tazruk's claims were frivolous. Rather than comply with the Griffin procedure, he attempted to evade it. Given our independent duty to protect Tazruk's right to the effective assistance of counsel in pursuing his application for post-conviction relief, we cannot allow this evasion.

1 . See generally AS 12.72.010-040; Alaska R.Crim. P. 35.1.

2 . AS 18.85.100(c).

3 . Grinols v. State, 10 P.3d 600, 621, 623 (Alaska App.2000).

4 . 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).

5 . 18 P.34 71 (Alaska App.2001).

6 . Id. at 73 (citing Robbins, 528 U.S. at 279, 120 S.Ct. at 761).

7 . Id. at 75-77.

8 . See id. at 75, T7.

9 . Id. at 76 (citing Alaska R.Crim. P. 35.1(0(2)).

10 . Id. at 77.

11 . See Alaska R.Crim. P. 35.1(e)(2).

12 . 755 P.2d 406 (Alaska App.1988).

13 . Id. at 409.

14 . Id.

15 . Griffin, 18 P.3d at 75.

16 . Id. at 76-77.