Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
MANNHEIMER, Judge.
Albert L. Allen appeals the superior court's dismissal of his second petition for post-conviction relief. In this petition, Allen asserted that he received ineffective assistance of counsel from the attorney who represented him in his first petition for post-conviction relief, and also from the two attorneys who represented him in his underlying criminal trial.
In June 1994, Allen killed another man, Devron Labat. Allen was ultimately convicted of second-degree murder for this homicide. This Court affirmed Allen's second-degree murder conviction on direct appeal.1 Allen then filed his first petition for post-conviction relief. That first petition was dismissed by the superior court, and this Court affirmed the dismissal.2
In his second petition for post-conviction relief, Allen claimed that his trial attorneys incompetently failed to procure and present the testimony of a witness, Michelle Arms, who (according to Allen) would have provided support for his assertion that he killed Labat in self-defense. Allen additionally claimed that his previous post-conviction relief attorney incompetently failed to prove that his trial attorneys handled this matter incompetently.
Superior Court Judge Peter A. Michalski dismissed Allen's second petition, ruling that Allen had not presented a prima facie case on two essential elements of his claim for post-conviction relief. First, Judge Michalski concluded that even though Allen's trial attorneys (and the investigator working for them) were unsuccessful in their efforts to find the witness, Allen had failed to offer any evidence that the two attorneys' efforts were incompetent. Second, Judge Michalski concluded that even if the witness, Arms, had given testimony in conformity with Allen's offer of proof, her testimony would have been significantly weaker than the other testimony supporting Allen's claim of self-defense, and thus it would not have altered the outcome of Allen's trial.
As we explain in this opinion, we agree with Judge Michalski's conclusions, and we therefore affirm his decision to dismiss Allen's petition.
Underlying facts
This is the fourth time that Allen's case has come before this Court. Allen was originally convicted of first-degree murder for killing Labat, but this Court reversed his conviction in Allen v. State (Allen I), 945 P.2d 1233 (Alaska App. 1997), because the trial judge erroneously allowed the State to introduce evidence of Allen's prior acts of violence. Id. at 1240-43.
Following our decision in Allen I, Allen was tried again for first-degree murder. The evidence presented at that trial was summarized in our second decision, Allen v. State (Allen II), 51 P.3d 949 (Alaska App. 2002):
In the early morning of June 15, 1994, Albert Lee Allen was visited by Devron Labat and two female friends. The visit was not friendly: Allen had been dating Labat's long-time girlfriend, Michelle Aquino, while Labat was in prison. Now that Labat had been released from prison, he wanted to convince Allen to stay away from Aquino.
After Labat explained his position to Allen, he left Allen's apartment and walked over to Allen's truck. Allen could see Labat kneeling by the truck, and he thought that Labat was trying to disable the vehicle. Allen armed himself with a butcher knife, crawled out of his apartment through a bedroom window, and approached Labat. When Labat saw Allen coming, he started to run away, but Allen gave chase. Allen caught up to Labat, stabbed him in the stomach, then banged his head on the pavement and kicked him.
Labat died from the stab wound, and Allen was indicted for first-degree murder. At Allen's trial, the jury convicted him of the lesser offense of second-degree murder.
Allen II, 51 P.3d at 952.
In Allen II, and in our later supplemental opinion on rehearing (Allen v. State, 56 P.3d 683 (Alaska App. 2002)), we upheld Allen's conviction and sentence for second-degree murder.
Following our affirmance of Allen's second-degree murder conviction, Allen filed his first petition for post-conviction relief. In that first petition, Allen argued that he received ineffective assistance of counsel from his two trial attorneys. The superior court dismissed Allen's petition for failure to present a prima facie case, and we affirmed the superior court's decision in Allen v. State (Allen III), 153 P.3d 1019 (Alaska App. 2007).
For present purposes, the relevant portion of our decision in Allen III is our discussion of Allen's claim that his trial attorneys incompetently failed to present the testimony of Jim Snyder and Michelle Arms during the defense case at Allen's trial. According to Allen, these two witnesses would have provided important testimony to support Allen's own testimony that he thought that Labat was armed with a gun, and that he (Allen) was acting in self-defense when he chased Labat and stabbed him.3
At his re-trial, Allen was jointly represented by two attorneys: Sidney Billingslea, the attorney who had previously served as Allen's trial attorney, and Christine Schleuss, the attorney who successfully pursued Allen's appeal in Allen I, where this Court reversed Allen's conviction for first-degree murder.4
In his first petition for post-conviction relief, Allen asserted that Billingslea and Schleuss acted incompetently when they failed to present the testimony of Snyder and Arms. In support of this claim, Allen presented the affidavit of Public Defender Investigator Sue Hedge. We described the contents of that affidavit in Allen III, 153 P.3d at 1021. Here are the basic details:
During Hedge's investigation of Allen's potential claims for post-conviction relief, she located and then conducted telephone interviews of both Snyder and Arms.
According to Hedge's affidavit, Snyder "indicated to [Hedge] that he still remembered the incident [when Allen killed Labat]". According to Hedge's account of her conversation with Snyder, Snyder "was convinced that Labat had a gun on him that night, but that [Labat] had given [the gun] to [a woman companion] in [a] truck just before Allen started chasing him." Hedge also stated in her affidavit that Snyder "remembered Allen yelling things about the gun all during the incident."
In another portion of her affidavit, Hedge recounted her conversation with Arms. According to Hedge's affidavit, Arms said that she had been a witness to a phone conversation between Allen and Labat that occurred shortly before the homicide. According to Hedge's affidavit, Arms said that she "was in bed with Allen [at the time,] and could hear Labat on the other end of the call." In her affidavit, Hedge stated that Arms "remembered Labat saying [that] he was going to come over to [Allen's] door with a gun and blow his head off", and that "Allen was scared and upset over [this] threatening call".
With regard to the fact that Arms did not appear as a witness at Allen's trial, Arms explained to Hedge that she knew that "someone from the defense was looking for her in regard to the case, but that they didn't find her [because she was] in California at the time."
Both of Allen's attorneys (Billingslea and Schleuss), as well as their investigator, Richard Norgard, submitted affidavits concerning their attempts to locate the two witnesses and present their testimony. Allen III, 153 P.3d at 1022-23. According to these affidavits, Allen's trial attorneys understood that Snyder and Arms might potentially have important testimony to offer, but the defense team was unable to locate the two witnesses. Ibid.
We concluded that Allen had failed to make out a prima facie case of attorney incompetence because he failed to present any reason to believe that the defense team's efforts to locate Snyder and Arms were not just unsuccessful, but also incompetent:
[T]he ultimate question is whether Allen presented a prima facie case that Billingslea and Schleuss acted incompetently when they asked [their investigator] Norgard to find Arms and Snyder, or whether Norgard's ensuing attempts to locate these witnesses were so inadequate under the circumstances that they demonstrated incompetency.
In his affidavit, Norgard explained that he contacted Arms's mother, that he went to Snyder's last known address, and that he searched for both Arms and Snyder in databases (presumably, computerized databases). When the State (in its motion to dismiss Allen's petition) asserted that Allen had failed to present any evidence that these efforts were unreasonable or incompetent, Allen did not suggest how Norgard might have done better — either by proposing alternative methods that Norgard might have employed, or by explaining how [his current investigator] Hedge had been able to locate the two witnesses. Instead, Allen responded by repeating the conclusory sentence he had offered in his petition: "The [defense team's] efforts to locate [Snyder and Arms] were limited and minimal."
This was not sufficient. To present a triable issue as to whether the defense team might have acted incompetently in their efforts to locate Arms and Snyder, Allen was obliged to present some evidence that these efforts were so unlikely to succeed, or were so inadequate in light of Allen's need for these witnesses, that no competent attorney would have been satisfied by these efforts. Allen presented no such evidence.
Allen III, 153 P.3d at 1026-27.
Allen's current petition for post-conviction relief, and why we uphold the superior court's dismissal of that petition
After this Court affirmed the superior court's dismissal of Allen's first petition for post-conviction relief, Allen filed a second petition in which he asserted that the attorney who represented him in the first post-conviction relief litigation, Assistant Public Defender Linda Wilson, incompetently failed to present a prima facie case that Billingslea, Schleuss, and Norgard were incompetent in their efforts to find witness Michelle Arms.
(Allen is no longer pursuing his claim with regard to witness Jim Snyder.)
However, Allen presented only conclusory assertions that Billingslea, Schleuss, and Norgard were incompetent in this regard. Wilson submitted an affidavit in which she stated, "I should have been more specific in what additional efforts could have been made [to locate and present the testimony of witness Arms]" — but Wilson did not explain what other efforts could have been made to locate Arms and procure her testimony.
Moreover, the ultimate question was not whether Billingslea, Schleuss, and Norgard might have used different or additional methods to locate Arms. Rather, to present a prima facie case of attorney incompetence, Allen needed to offer evidence that the methods used by Billingslea, Schleuss, and Norgard were so inept or so inadequate that no competent defense attorney would have used these methods, or would have stopped looking for Arms when these methods proved unsuccessful. Wilson offered no opinion on this issue, and Allen's petition for post-conviction relief did not present any other evidence on this issue.
Accordingly, we agree with Judge Michalski that Allen's second petition for post-conviction relief failed to present a prima facie case on the issue of whether Wilson represented Allen incompetently in the first post-conviction relief litigation, and on the underlying — and ultimate — question of whether Billingslea's, Schleuss's, and Norgard's efforts to procure Arms's testimony were incompetent.
Judge Michalski dismissed Allen's petition on an alternative basis: he concluded that even if Arms had testified at Allen's trial, and even if Arms had given the testimony that Allen asserts she would have, Arms's testimony would not have altered the jury's verdict.
As we have already noted earlier in this opinion, Allen III contains a description of a defense investigator's version of what Arms would have said if she had been called to the stand. According to the affidavit filed by the defense investigator (Sue Hedge), Arms said that she had overheard a phone conversation between Allen and Labat that took place shortly before the homicide. (The homicide occurred on June 14, 1994). According to Hedge's affidavit, Arms said that she "was in bed with Allen [at the time,] and could hear Labat on the other end of the call", and that "Labat [said] he was going to come over to [Allen's] door with a gun and blow his head off".
But in the affidavit that Arms herself submitted in conjunction with Allen's second petition for post-conviction relief, Arms gave a different account of this telephone conversation. According to Arms's affidavit, the telephone conversation between Allen and Labat occurred in early 1994 — that is, several months before the homicide. Moreover, in her affidavit, Arms stated that she could not hear Labat's side of the conversation. However, she affirmed that Allen was upset by the telephone call, and that he started to curse.
Allen's investigator, Sue Hedge, offered a counter-affidavit that impeached Arms's assertion that she heard only Allen's side of the conversation. Hedge re-affirmed that, when she initially interviewed Arms, Arms stated that she had been able to hear Labat on the telephone, and that Labat threatened to "come over to [Allen's] door . . . and blow his head off".
However, in her affidavit, Hedge did not dispute Arms's description of the timing of the phone call — i.e., Arms's assertion that the call occurred in early 1994, rather than shortly before the homicide.
Judge Michalski concluded that even if the inconsistency between Arms's affidavit and Hedge's affidavit was resolved in Allen's favor — that is, even if Arms had given testimony along the lines suggested by Hedge's affidavit — this would have been cumulative to the other testimony presented at Allen's trial supporting his claim of self-defense.
At the trial, Allen testified about a telephone call in which Labat threatened to "kill [him and his] kids, anybody who was at [his] house, if [he] didn't leave Michele [Acquino] alone."
Another witness, William Toney, testified that he was Labat's roommate at the Palmer Correctional Facility in early 1994, and that Labat told him that he wanted to kill Allen "because he was messing with his girl." Toney added that Labat was obsessed with killing Allen, and that Labat's obsession got stronger the closer Labat got to his release date. Labat was released from prison shortly before the confrontation that led to Labat's death.
Another witness, Benjamin Briggs, testified that Labat was constantly angry, and that he indicated that he was going to kill Allen when he got out of jail.
More importantly, Allen himself testified that, on the night of the murder, Labat came to his door and threatened to shoot him. Witness Julie Yourell, one of the women who accompanied Labat to Allen's house on the night of the homicide, corroborated Allen's testimony on this issue. And Allen's assertion that he reasonably feared violence at the hands of Labat was further corroborated by Allen's phone call to the 911 operator that night; in his call to 911, Allen expressed fear for his life.
In Judge Michalski's order dismissing Allen's petition for post-conviction relief, the judge concluded that Arms's testimony would not have made any difference to the outcome of Allen's trial — because, even crediting Arms's testimony (as supplemented, or impeached, by Hedge's affidavit), Labat's threatening telephone call to Allen took place some four months before the homicide.
Judge Michalski noted that other witnesses — William Toney and Benjamin Briggs — testified about Labat's long history of animosity and threats toward Allen. And Julie Yourell corroborated Allen's testimony that Labat actively threatened Allen on the night of the homicide itself.
Evidence of Labat's violent history was also presented to the jury, including an incident in which he told another girlfriend, Mindy Famulski, that he would kill her daughter if he thought Famulski was "messing" with him. On another occasion, Labat held a 12-gauge shotgun to Famulski's head and warned her, "This is what I do to people that talk too much." And on the night when he confronted Allen, Labat told his companions, "We're all going to die tonight."
This record amply supports Judge Michalski's conclusion that, even if Arms had testified, there was no reasonable possibility that the jury's verdict would have been altered by her testimony.
Conclusion
The judgement of the superior court is AFFIRMED.
