Grinols v. State
In Grinols v. State, 10 P.3d 600 (Alaska App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003), the Court held that a defendant has a due process right to collaterally attack the effectiveness of his or her post-conviction attorney in a second post-conviction application.
Grinols set forth a four-step process for establishing ineffective assistance of post-conviction counsel. In order to prove that post-conviction counsel provided ineffective assistance, the "defendant must do more than prove that their post-conviction relief attorney failed to raise or competently argue a colorable legal issue." Rather, the defendant must also prove four more things:
First, the defendant must establish their own diligence in raising the claim of ineffective representation.
Second, the defendant must establish the incompetence of their prior post-conviction relief attorney. They must prove that their attorney's failure to recognize the omitted issue, or the attorney's failure to pursue it, constituted a level of representation below the acceptable minimum of skill expected of criminal law practitioners.
Third, the defendant must establish that the omitted legal issue is, in fact, meritorious - that if the underlying issue had been litigated, the defendant would have won. When a defendant presents a "layered" claim of ineffective assistance of counsel (i.e., when the defendant claims that their post-conviction relief attorney incompetently failed to prove the incompetence of their trial attorney), this means that the defendant must prove the incompetence of both attorneys.
Fourth ... the defendant must establish that, with this issue resolved in the defendant's favor, there is a reasonable possibility that the outcome of the defendant's original trial court proceedings would have been different. Again, the ultimate issue is the fairness of the defendant's conviction and sentence. It is not enough for the defendant to prove that the first post-conviction proceeding should have gone differently. The defendant must also prove that the flaw in the prior post-conviction relief proceeding prevented the defendant from establishing a demonstrable and prejudicial flaw in the original trial court proceedings.
The Court addressed a sibling provision of AS 12.72.020(a)(2): AS 12.72.020(a)(6), a section that forbids successive petitions for post-conviction relief. The Court held that there might be times when a strict prohibition on a second petition for post-conviction relief would violate a defendant's right of due process of law.
The Court said that a denial of due process would occur "if the defendant demonstrated that failure to consider the claim would result in a fundamental miscarriage of justice -- as, for example, where a constitutional violation has probably resulted in the conviction of one who is actually innocent". (Grinols, 10 P.3d at 615.)
The Court held that a defendant may file a second application for post-conviction relief to challenge the effectiveness of the attorney who represented him during his first post-conviction proceeding.
Alaska Statute 12.72.025 declares that such applications must be filed "within one year after the court's decision on the prior application is final under the Alaska Rules of Appellate Procedure."
The Court ruled that the absolute bar on successive post-conviction relief applications is generally consistent with the Alaska Constitution's guarantee of due process of law.
Still, the Court noted that due process may require review of a successive application in limited situations where "failure to consider the claim would 'result in a fundamental miscarriage of justice' -- as, for example, 'where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'"
Speaking specifically about DNA evidence, we predicted that due process under the Alaska Constitution would require a court to hear a successive application where "a defendant ... obtained clear genetic evidence of ... innocence."