Duncan v. State
In Duncan v. State, Mem. Op. & J. No. 5407, 2008 WL 5025424 (Alaska App. Nov. 26, 2008) the petitioner's attorney likewise proceeded on his client's pro se application. Duncan's attorney filed an opposition to the State's motion to dismiss, but ignored the State's argument that the claims were time-barred by the statute of limitations. By ignoring the State's argument, the attorney "in effect conceded that there were no non-frivolous claims to raise" on his client's behalf.
Where the claims raised in Duncan's pro se application for postconviction relief were clearly barred and the attorney did not contest the point in his opposition to the State's motion to dismiss, the opposition was the functional "equivalent of a 'no merit' certificate - only without the explanations required by Griffin v. State and Criminal Rule 35.1(e)(2)."
The Court noted that the Court had "a constitutional duty to independently assess the merits of Duncan's case to ensure that he received zealous investigation and presentation of any colorable claims for post-conviction relief."
The Court found ourselves with an inadequate "record of the materials the attorney reviewed, the investigation he conducted, the discovery he sought, the other potential claims he considered, or his reasons for concluding those claims were frivolous ... ."
The Court remanded the case back to the superior court with instructions (1) that the attorney submit to the court a full explanation of all of the claims he considered and why he concluded the claims were frivolous; (2) that the petitioner be permitted to file a response; and (3) that the court then consider the merits of the claims.