Incompetent Counsel - Denying Fair Opportunity to Present Claim
The court in Alaska has recognized the potential injustice of applying a rule of res judicata in situations where, because of incompetent counsel, a defendant never had a fair opportunity to present their claims earlier.
In Bangs v. State, we declared that a defendant would generally be able to establish good cause for failing to assert a claim in an earlier petition for post-conviction relief if "the failure to assert the claim in a prior application resulted from ineffective assistance of counsel."
Courts from other jurisdictions have reached the same conclusion. for instance, in People v. Winsett, the Supreme Court of Illinois stated that, even though "post-conviction review is limited to constitutional matters which ... could not have been ... previously adjudicated, ... this court has held that this doctrine ... should not bar the court from considering an issue where the defendant's failure to previously raise the issue stems from incompetency of counsel on appeal." People v. Winsett, 153 Ill. 2d 335, 606 N.E.2d 1186, 1193, 180 Ill. Dec. 109 (Ill. 1992).
Decisions from other states echo this approach.
See: Collins v. State, 588 N.W.2d 399, 402-03 (Iowa 1998) (the incompetence of prior post-conviction relief counsel may constitute a sufficient reason for the defendant's failure to raise a claim in the earlier petition);
Petition of Hans, 1998 MT 7, 958 P.2d 1175, 288 Mont. 168 (Mont. 1998) (when the defendant's appellate counsel incompetently abandoned his appeal, the defendant should be allowed to pursue a petition for post-conviction relief and raise claims that would otherwise be barred because they could have been raised on appeal);
Washington v. State, 324 S.C. 232, 478 S.E.2d 833, 835 (S.C. 1996) (the rules barring successive petitions for post-conviction relief must be relaxed when the defendant did not receive due process during the prior post- conviction litigation);
Hernandez v. State, 133 Idaho 794, 992 P.2d 789, 793 (Idaho App. 1999) (the incompetence of the lawyer who represented the defendant in a prior action for post- conviction relief is sufficient reason to allow the defendant to pursue a second petition for relief);
Gooch v. State, 717 So. 2d 50 (Ala. Crim. App. 1997) (a defendant should normally be allowed to pursue a second petition for post-conviction relief based on the claim that his trial attorney was ineffective if this is the first petition filed by an attorney other than the trial attorney);
State v. Pocius, 104 Ohio App. 3d 18, 660 N.E.2d 1236, 1238 (Ohio App. 1995) (res judicata would not bar the defendant from claiming that his trial attorney was incompetent if this petition for post-conviction relief was the first litigation filed by an attorney other than the trial attorney).
One potential objection to Bangs and the cases from our sibling states is that all of these decisions are premised on the assumption that a defendant can expect competent counsel when they pursue a claim for post-conviction relief.
This assumption is no longer self-evident. As explained in Section 4(c) of this opinion, the federal Constitution does not guarantee effective assistance of counsel to defendants in post- conviction relief litigation.
More particularly, the United States Supreme Court has ruled (1) that there is no federal right to the assistance of counsel in post-conviction relief litigation, and (2) even when a state grants defendants the right to assistance of counsel in post-conviction relief litigation, this is a matter of state law only, and there is no violation of the federal Constitution if the defendant's lawyer turns out to be incompetent.
But although federal law does not guarantee a right to counsel in post- conviction relief litigation, Alaska law does -- at least, for defendants who are pursuing their first petition for post-conviction relief.
And even though the United States Supreme Court has declared that the incompetence of the defendant's appointed attorney is of no concern, we agree with the Supreme Court of California that a defendant who is represented by counsel "has a right to assume that counsel is competent".
As former Chief Judge Bryner said in his concurring opinion in Hertz v. State, "Inasmuch as ... representation by counsel is a matter of right, there is simply no basis for concluding that post-conviction relief applicants should receive anything less than the full, effective assistance of counsel".
Or, as the Supreme Court of Connecticut declared more pointedly, "it would be absurd for a defendant to have the right to appointed counsel who is not required to be competent."