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.

Brian F. Hall appeals the superior court's dismissal of his second petition for post-conviction relief. For the reasons explained here, we affirm the superior court's decision.

Hall shot and killed two young men in 1993, and he was indicted for murder. At his trial, Hall claimed that he acted in self-defense: that he reasonably but mistakenly believed, when he fired the shots, that one of the men was threatening him with a gun. The jury rejected Hall's defense and convicted him of two counts of murder (one count in the first degree, the other in the second degree).

Hall's direct appeal

At Hall's trial, the prosecutor initially asked the trial judge to instruct the jury on heat of passion — a partial defense that would have reduced Hall's crime to manslaughter.1 But the prosecutor later withdrew this request, and Hall's attorney agreed to this.

In his direct appeal, Hall (now represented by a different attorney) argued that the trial judge committed plain error by failing to instruct the jury on heat of passion, even though neither the prosecutor nor the defense attorney wanted to litigate this issue. We rejected Hall's argument — because the record plainly showed that Hall's trial attorney made a tactical decision not to pursue a heat of passion defense, and to focus instead on self-defense (which would have been a complete defense to the murder charges). See Hall v. State (Hall I), unpublished, 1998 WL 90885 at *4 (Alaska App. 1998).

In that same direct appeal, Hall also argued that his trial attorney was incompetent for allowing the case to go to the jury without a heat of passion instruction. But we refused to decide that claim, based on the rule announced in Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) — the rule that, except in cases of plain error, an appellate court will not entertain claims of ineffective assistance of counsel that are raised for the first time on appeal. Hall I, 1998 WL 90885 at *4.

Hall's first petition for post-conviction relief

Following our decision of Hall's direct appeal, Hall filed a petition for post-conviction relief. In this petition, Hall argued that his trial attorney was incompetent for failing to pursue a heat of passion defense, and for not asking the trial judge to instruct the jury on heat of passion.

The superior court held a hearing on Hall's claims. At that hearing, Hall offered the testimony of three attorneys: his trial attorney, Sidney Billingslea, as well as two expert witnesses: attorneys James Gilmore and Cynthia Strout, both of whom were experienced criminal law practitioners. Billingslea asserted that she had made a reasonable decision not to pursue a heat of passion defense, and that she therefore acted competently when she allowed Hall's case to go to the jury without a heat of passion instruction. However, the two expert witnesses asserted that Billingslea's strategy was incompetent.

Despite the assertions of the two experts, the superior court concluded that a competent criminal defense attorney could reasonably have decided that Hall's case should be defended solely on a claim of self-defense — a claim which, if successful, would have resulted in Hall's complete exoneration. The superior court therefore denied Hall's petition for post-conviction relief.

Hall appealed the superior court's decision, but this Court affirmed the superior court's judgement in Hall v. State (Hall II), unpublished, 2007 WL 2069546 (Alaska App. 2007).

As we explained in our decision in Hall II, the evidence presented at the post-conviction relief hearing clearly showed that Hall's trial attorney, Billingslea, made a conscious decision not to pursue that defense — and to instead focus solely on a claim of self-defense. Billingslea explained that she acquiesced in the State's withdrawal of its proposed heat of passion instruction because, as a general matter, she did not favor running "combination" defenses — for example, arguing self-defense but offering the jury a fallback position of heat of passion. She believed that, in most instances, it was better to choose a single defense theory and stick to it.2 Moreover, Billingslea testified that, prior to Hall's trial, she consulted four other defense attorneys about Hall's case — including Cynthia Strout, one of the expert witnesses that Hall presented at the post-conviction relief hearing to offer criticism of Billingslea's decision. According to Billingslea, none of these other attorneys advised her to pursue a heat of passion defense. In fact, Billingslea had no recollection of any of these attorneys even mentioning heat of passion as a plausible defense.3

Hall's two expert witnesses — Strout and Gilmore — criticized Billingslea for making this decision, but their testimony at the hearing undercut their criticism.

Even though Strout testified it was incompetent of Billingslea to litigate Hall's case without offering a heat of passion defense as an alternative to Billingslea's primary claim of self-defense, Strout agreed that Billingslea had consulted her about Hall's case before trial. In fact, Strout testified that she participated in a mock cross-examination of Hall at the jail, and that she filed some of the defense motions in limine.4

Strout never disputed Billingslea's testimony that she (Strout) never urged, or even suggested, that Billingslea advance a heat of passion defense. Instead, it was Strout's opinion that Hall had a good self-defense case and a "higher-than-ordinary chance of outright acquittal". According to Strout, her first discussion of heat of passion as a possible defense in Hall's case occurred after the trial, when Billingslea was expressing regret that she had not offered heat of passion as a defense theory.5

Gilmore likewise testified that Billingslea was incompetent for failing to present heat of passion as an alternative defense, but it appeared that Gilmore's assessment was based, in large measure, on his understanding that Billingslea never made a conscious decision to forego heat of passion and to focus on self-defense instead.6 As we have explained, and as the superior court found, this understanding was mistaken.

Gilmore also conceded, on cross-examination, that he had personally litigated three homicide cases in which he pursued a claim of self-defense and decided not to seek or offer heat of passion as a backup defense.7

Given this evidence, we concluded that the record supported the superior court's rejection of Hall's claim of ineffective assistance of counsel, and we therefore affirmed the superior court's denial of Hall's petition for post-conviction relief. Hall II at *4.

Hall's second petition for post-conviction relief

After this Court affirmed the superior court's denial of Hall's first petition for post-conviction relief, Hall filed a second petition for post-conviction relief. The core of this second petition consisted of four related claims, all seeking suppression of Hall's post-shooting interview with the police.

Hall claimed that the police violated his rights as a juvenile by interviewing him without a parent or guardian present. Hall further claimed that the police subjected him to custodial interrogation without first advising him of his Miranda rights. Third, Hall asserted that, during the interview, he asked to consult an attorney, but the police ignored this request. And finally, Hall asserted that his trial attorney, Sidney Billingslea, was incompetent for failing to pursue a suppression motion raising these claims.

The State, in its response, took the position that Hall had voluntarily gone to the state trooper headquarters, had consented to be interviewed, and had not been placed in custody. In other words, the State asserted that Hall's suppression claims lacked any factual support — and that, as a result, Hall could not show that Billingslea was incompetent for failing to pursue these claims.

The superior court initially appointed an attorney to assist Hall in arguing his claims, but the court later reconsidered its decision and concluded that Hall's claims were sufficiently straightforward that Hall could pursue them without the assistance of counsel. (For the law governing the appointment of counsel to assist a defendant who is pursuing a second petition for post-conviction relief, see Grinols v. State, 10 P.3d 600, 623 (Alaska App. 2000).)

Hall's petition for post-conviction relief remained in the pleading phase for approximately one year. During that time, the State served Hall with interrogatories and requests for production. The State asked Hall to specify which attorneys had represented him incompetently, and to describe precisely the ways in which these attorneys' performance was incompetent. The State also asked Hall to produce affidavits from these attorneys, in which the attorneys would respond to Hall's allegations of incompetence. And with respect to this latter request, the State asked Hall to waive his attorney-client privilege with respect to the attorneys whose performance he was challenging.

Hall ultimately listed all twelve of his previous attorneys as the ones whose performance he was challenging. But he refused to waive his attorney-client privilege, and he never produced affidavits from any of these attorneys.

The State finally moved to dismiss Hall's petition for post-conviction relief for failure to state a prima facie case. The State noted that Hall had never specified exactly what acts or omissions of his previous attorneys amounted to incompetent representation, nor had Hall presented any affidavits from these attorneys.

The superior court granted the State's motion and dismissed Hall's petition. Hall now appeals the superior court's decision.

The current appeal

In Hall's opening brief to this Court, he does not pursue any of the claims for relief that he presented to the superior court in the underlying (second) post-conviction relief litigation. Instead, Hall primarily argues that he received ineffective assistance from his trial attorney (Billingslea) because she failed to pursue a heat of passion defense, and failed to request a jury instruction on heat of passion.

Hall also argues that, because Billingslea failed to adequately investigate his case (in unspecified ways), he was wrongfully convicted.

In addition, Hall argues that the prosecutor acted improperly, and prejudiced the fairness of Hall's underlying criminal trial, when the prosecutor introduced evidence that the two shooting victims were unarmed.

In his reply brief, Hall concedes that the superior court was correct when it dismissed his second petition for post-conviction relief, because that second petition was (in Hall's own words) "vague, ambiguous, [and] not supported with . . . documentation [or] affidavits".

Hall argues, however, that these deficiencies should be excused, and that he should be given another chance to litigate his claims, because he is not an attorney and because he had no understanding of the kinds of documentation that were needed to support a petition for post-conviction relief. Hall complains that he lacked the funds to hire an attorney and that, as a result, he relied on "bad advice and guidance" from other prisoners who "[did] not know as much as they should [have]" about post-conviction relief litigation. Hall asks this Court to appoint an attorney to represent him, and to then allow him to return to the superior court for a re-litigation of his second petition for post-conviction relief.

The record does not support Hall's current claim that he did not understand the kind of supporting documentation that was needed to sustain his petition for post-conviction relief. The State, in its request for production, explained that Hall needed to supplement his nebulous claims of ineffective assistance of counsel by specifying exactly what acts or omissions of his previous attorneys were the basis for Hall's claims of incompetence. The State also explained that Hall needed to waive his attorney-client privilege and provide affidavits from these attorneys, affidavits in which the attorneys would address Hall's claims of incompetence.

In response to these requests, Hall expressly declined to waive his attorney-client privilege, and he never provided the court with any affidavits or other documentation dealing with his claims of attorney incompetence.

In other words, the record fails to support Hall's current claim that his failure to provide this supporting documentation was solely due to his alleged inadequate understanding of what documentation was required.

With respect to Hall's argument that his trial attorney was incompetent for failing to pursue a heat of passion defense, Hall is barred from raising this argument for two reasons. First, Hall did not present this argument to the superior court in his second petition for post-conviction relief. Second, this argument is barred by the doctrine of res judicata — because Hall did raise this argument in his first petition for post-conviction relief, the superior court rejected this argument, and this Court affirmed the superior court's decision on appeal in Hall II.

With respect to Hall's argument that Billingslea failed to adequately investigate his case, this argument is waived for three reasons. First, Hall did not present this argument to the superior court in his second petition for post-conviction relief. Second, Hall has not specified the particular ways in which Billingslea's investigation was allegedly inadequate. And third, Hall could have raised this argument in his first petition for post-conviction relief.

Finally, with respect to Hall's argument that the prosecutor acted improperly by introducing evidence that the two shooting victims were unarmed, this argument is waived because Hall did not present this argument to the superior court in his second petition for post-conviction relief, and also because, under AS 12.72.020(a)(2), a defendant is prohibited from seeking post-conviction relief based on a claim that could have been raised on direct appeal.

Conclusion

For the reasons explained here, the superior court's dismissal of Hall's second petition for post-conviction relief is AFFIRMED.