ineffective assistance of counsel claim in Alaska

2019Brief overview of the law on post-conviction conflict of interest claims A defendant’s right to effective assistance of counsel under the Sixth Amendment has two components: competent representation, and zealous, conflict-free representation.38 Because the right to conflict-free counsel is a subset of the right to effective assistance of counsel, a defendant who seeks post-conviction relief based on a claim that his attorney was laboring under a conflict of interest would typically need to prove both prongs of an ineffective assistance of counsel claim — including the prejudice prong.39 38 Woo

2019Brief overview of the law on post-conviction conflict of interest claims A defendant’s right to effective assistance of counsel under the Sixth Amendment has two components: competent representation, and zealous, conflict-free representation.38 Because the right to conflict-free counsel is a subset of the right to effective assistance of counsel, a defendant who seeks post-conviction relief based on a claim that his attorney was laboring under a conflict of interest would typically need to prove both prongs of an ineffective assistance of counsel claim — including the prejudice prong.39 38 Woo

2025The first two cases are Strickland v. Washington and United States v. Cronic, issued on the same day in 1984. 10 In 9 McCoy v. Louisiana, 584 U.S. 414 (2018). 10 Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984). –8– 2806 Strickland, the United States Supreme Court set out the basic two-prong test for an ineffective assistance of counsel claim, which requires the defendant to prove both that their attorney was incompetent and that this incompetence caused them prejudice. 11 In Cronic, the Court held that there were certain rare circumstances in which t

2019Brief overview of the law on post-conviction conflict of interest claims A defendant’s right to effective assistance of counsel under the Sixth Amendment has two components: competent representation, and zealous, conflict-free representation.38 Because the right to conflict-free counsel is a subset of the right to effective assistance of counsel, a defendant who seeks post-conviction relief based on a claim that his attorney was laboring under a conflict of interest would typically need to prove both prongs of an ineffective assistance of counsel claim — including the prejudice prong.39 38 Woo

2014Servs., 329 P.3d 980, 989 (Alaska 2014) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007)) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). 3 See David S. v. State, Dep’t of Health & Social Servs., 270 P.3d 767, 784 (Alaska 2012) (adopting the two-pronged test for ineffective assistance of counsel from Risher v. State, 523 P.2d 421, 425 (Alaska 1974)). -26- 6965 Many state courts simply decline to address an ineffective assistance of counsel claim in termination cases unless the claim has been raised in th

2014Servs., 329 P.3d 980, 989 (Alaska 2014) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007)) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). 3 See David S. v. State, Dep’t of Health & Social Servs., 270 P.3d 767, 784 (Alaska 2012) (adopting the two-pronged test for ineffective assistance of counsel from Risher v. State, 523 P.2d 421, 425 (Alaska 1974)). -26- 6965 Many state courts simply decline to address an ineffective assistance of counsel claim in termination cases unless the claim has been raised in th

2019Conclusion We AFFIRM the judgments of the superior court. 47 (...continued) 1401, 1405-06 (11th Cir. 1987))). 48 See Newby v. State, 967 P.2d 1008, 1014 (Alaska App. 1998) (holding that to establish an ineffective assistance of counsel claim based on a conflict (other than joint representation), a defendant must generally show (1) an actual conflict of interest, and (2) that this conflicting interest adversely affected the defense attorney’s representation of the defendant). – 24 – 2654

2019Brief overview of the law on post-conviction conflict of interest claims A defendant’s right to effective assistance of counsel under the Sixth Amendment has two components: competent representation, and zealous, conflict-free representation.38 Because the right to conflict-free counsel is a subset of the right to effective assistance of counsel, a defendant who seeks post-conviction relief based on a claim that his attorney was laboring under a conflict of interest would typically need to prove both prongs of an ineffective assistance of counsel claim — including the prejudice prong.39 38 Woo

2014Servs., 309 P.3d 850, 858-59 (Alaska 2013) (citation omitted). 27 See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). 28 See Nelson v. State, 273 P.3d 608, 612 (Alaska 2012) (requiring a challenging party to present some evidence ruling out the possibility of a tactical reason explaining an attorney’s conduct). 29 See Paula E. v. State, Dep’t of Health & Soc.

2014See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). . -See Nelson v. State, 273 P.3d 608, 612 (Alaska 2012) (requiring a challenging party to present some evidence ruling out the possibility of a tactical reason explaining an attorney's conduct). .

2020If the superior court determines that Ahvakana has shown a reasonable possibility that, but for his attorney’s deficient performance, the outcome of his case would have been different, the court must turn to the question of what remedy is 26 (...continued) “reasonable probability”). 27 See State v. Jones, 759 P.2d 558, 572 (Alaska App. 1988) (explaining that Alaska’s prejudice prong of the ineffective assistance of counsel standard is “significantly less demanding” than the federal standard). 28 Garay v. State, 53 P.3d 626, 629 (Alaska App. 2002) (“[T]he question is whether there is a reasonab

1992Although Jones did extensively discuss the procedural requirements for establishing post-conviction claims under Criminal Rule 35.1, see Jones, 759 P.2d at 565-67 , the decision gave separate consideration to the substantive requirements for proving an ineffective assistance of counsel claim under the Risher test, regardless of the procedural context in which the claim is raised.

2023And in Alaska, indigent criminal defendants are entitled to the assistance of court-appointed counsel to litigate a first application for post-conviction relief and any appeal from the trial court’s decision on that application.39 37 See AS 12.72.010(9); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) (holding that, because the trial record is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance claims will generally only be addressed on appeal when the claims have been litigated in a new tr

1992Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984).

2019The defendant still bears the burden of showing that the attorney’s conflict of interest prejudiced him in the sense that, because of the attorney’s conflicting interest, the attorney took some action (or refrained from taking some action) that was contrary to the defendant’s interests.42 As the United States Supreme Court later explained in Strickland v. Washington, this presumption of prejudice as to the ultimate outcome was adopted because “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”43 40 Cuyler v. Sullivan, 446 U.S. 33

2019The defendant still bears the burden of showing that the attorney’s conflict of interest prejudiced him in the sense that, because of the attorney’s conflicting interest, the attorney took some action (or refrained from taking some action) that was contrary to the defendant’s interests.42 As the United States Supreme Court later explained in Strickland v. Washington, this presumption of prejudice as to the ultimate outcome was adopted because “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”43 40 Cuyler v. Sullivan, 446 U.S. 33

2019Brief overview of the law on post-conviction conflict of interest claims A defendant’s right to effective assistance of counsel under the Sixth Amendment has two components: competent representation, and zealous, conflict-free representation.38 Because the right to conflict-free counsel is a subset of the right to effective assistance of counsel, a defendant who seeks post-conviction relief based on a claim that his attorney was laboring under a conflict of interest would typically need to prove both prongs of an ineffective assistance of counsel claim — including the prejudice prong.39 38 Woo

2019Brief overview of the law on post-conviction conflict of interest claims A defendant’s right to effective assistance of counsel under the Sixth Amendment has two components: competent representation, and zealous, conflict-free representation.38 Because the right to conflict-free counsel is a subset of the right to effective assistance of counsel, a defendant who seeks post-conviction relief based on a claim that his attorney was laboring under a conflict of interest would typically need to prove both prongs of an ineffective assistance of counsel claim — including the prejudice prong.39 38 Woo

2014PRAC . & PROCESS 179, 199-205 (2004). 28 In re RGB, 229 P.3d at 1085 (citations omitted). -13- 6965 impermanent foster care, and increases the possibility of the child suffering permanent harm.29 The arguments against the direct appeal approach are that the appellate court may not be able to determine the claim’s merits from the record and trial counsel still may be representing the parent.30 Although it may be preferable to establish a court rule setting out how to raise an ineffective assistance of counsel claim in this context,31 we have not done so; we instead have resolved claims as prese

2014PRAC . & PROCESS 179, 199-205 (2004). 28 In re RGB, 229 P.3d at 1085 (citations omitted). -13- 6965 impermanent foster care, and increases the possibility of the child suffering permanent harm.29 The arguments against the direct appeal approach are that the appellate court may not be able to determine the claim’s merits from the record and trial counsel still may be representing the parent.30 Although it may be preferable to establish a court rule setting out how to raise an ineffective assistance of counsel claim in this context,31 we have not done so; we instead have resolved claims as prese

2014Servs., 329 P.3d 980, 989 (Alaska 2014) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007)) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). .

2014Servs., 329 P.3d 980, 989 (Alaska 2014) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007)) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). 3 See David S. v. State, Dep’t of Health & Social Servs., 270 P.3d 767, 784 (Alaska 2012) (adopting the two-pronged test for ineffective assistance of counsel from Risher v. State, 523 P.2d 421, 425 (Alaska 1974)). -26- 6965 Many state courts simply decline to address an ineffective assistance of counsel claim in termination cases unless the claim has been raised in th

2023Servs., Off. of Child.’s Servs., 336 P.3d 1258, 1265 (Alaska 2014) (placing the burden for both prongs on the litigant bringing the ineffective assistance of counsel claim). 25 David S. v. State, Dep’t of Health & Soc.

2023Servs., Off. of Child.’s Servs., 336 P.3d 1258, 1265 (Alaska 2014) (placing the burden for both prongs on the litigant bringing the ineffective assistance of counsel claim). 25 David S. v. State, Dep’t of Health & Soc.

2020If the superior court determines that Ahvakana has shown a reasonable possibility that, but for his attorney’s deficient performance, the outcome of his case would have been different, the court must turn to the question of what remedy is 26 (...continued) “reasonable probability”). 27 See State v. Jones, 759 P.2d 558, 572 (Alaska App. 1988) (explaining that Alaska’s prejudice prong of the ineffective assistance of counsel standard is “significantly less demanding” than the federal standard). 28 Garay v. State, 53 P.3d 626, 629 (Alaska App. 2002) (“[T]he question is whether there is a reasonab

2014Servs., 309 P.3d 850, 858-59 (Alaska 2013) (citation omitted). 27 See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). 28 See Nelson v. State, 273 P.3d 608, 612 (Alaska 2012) (requiring a challenging party to present some evidence ruling out the possibility of a tactical reason explaining an attorney’s conduct). 29 See Paula E. v. State, Dep’t of Health & Soc.

2014See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). . -See Nelson v. State, 273 P.3d 608, 612 (Alaska 2012) (requiring a challenging party to present some evidence ruling out the possibility of a tactical reason explaining an attorney's conduct). .

2014Servs., 309 P.3d 850, 858-59 (Alaska 2013) (citation omitted). 27 See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 2007) (declining to review an ineffective assistance of counsel claim that was not raised in the superior court). 28 See Nelson v. State, 273 P.3d 608, 612 (Alaska 2012) (requiring a challenging party to present some evidence ruling out the possibility of a tactical reason explaining an attorney’s conduct). 29 See Paula E. v. State, Dep’t of Health & Soc.

2014Servs., 276 P.3d 422, 436 (Alaska 2012) (reviewing for plain error an objection that was not raised in the superior court). -18- 6925 STOWERS, Justice, dissenting in part.

2002See Champion v. State, 908 P.2d 454, 470 (Alaska App.1995) (noting that Alaska law classifies the burglary of any dwelling, occupied or not, as first-degree burglary); Shetters v. State, 751 P.2d 31, 36-37 (Alaska App.1988) (holding, in the context of an ineffective assistance of counsel claim, that the trial jury could have found that an unfinished house that was virtually complete but still unoccupied was a dwelling for purposes of the burglary statute). 11 .

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See Champion v. State, 908 P.2d 454, 470 (Alaska App.1995) (noting that Alaska law classifies the burglary of any dwelling, occupied or not, as first-degree burglary); Shetters v. State, 751 P.2d 31, 36-37 (Alaska App.1988) (holding, in the context of an ineffective assistance of counsel claim, that the trial jury could have found that an unfinished house that was virtually complete but still unoccupied was a dwelling for purposes of the burglary statute). 11 .

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho

2002See, e.g., People v. Silva, 256 Ill.App.3d 414 , 195 Ill.Dec. 484 , 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94 , 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535 , 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even tho