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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

MARLON MACK, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12672 

Trial Court No. 3AN-09-04467 CI

O P I N I O N 

No. 2738 — January 6, 2023 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Erin B. Marston, Judge. 

Appearances: Shelley K. Chaffin, Law Office of Shelley K. 

Chaffin, Anchorage, for the Appellant. Eric A. Ringsmuth, 

Assistant Attorney General, Office of Criminal Appeals, 

Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for 

the Appellee. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge WOLLENBERG. 

The Alaska Court of Appeals is an intermediate appellate court with 

jurisdiction over criminal and post-conviction relief cases. Under Alaska law, if a party 

receives an adverse final decision in this Court, the party may file a petition for hearing 

in the Alaska Supreme Court. Although the supreme court has absolute discretion 
whether to grant or deny the petition for hearing — i.e., whether to hear the petitioned 

case on the merits — a party nonetheless has the right to file the petition seeking review 

of this Court’s decision. 

In this appeal froma successivepost-conviction relief action,Marlon Mack 

argues that he established a prima facie case of ineffective assistance of counsel based 

on his previous appellate attorneys’ alleged failure to inform him of his right to file a 

petition for hearing in the Alaska Supreme Court — first, after he lost his direct appeal 

in this Court, and then, after he lost his first post-conviction relief appeal in this Court. 

Because we conclude that Mack’s case requires further proceedings, including an 

evidentiary hearing on at least one of his claims, we vacate the superior court’s dismissal 

of his most recent post-conviction relief application and remand for further proceedings 

consistent with this opinion. 

General factual overview and summary of our decision 

In 2002, Mack was convicted by a jury of first-degree murder for strangling 

and killing his girlfriend.1 

 Mack was represented by court-appointed counsel. Mack 

later challenged his conviction and sentence in this Court, and we affirmed.2 

 Mack’s 

appellate counsel did not file a petition for hearing in the Alaska Supreme Court. 

After losing his appeal,Mackfiled an application for post-conviction relief, 

challenging the effectiveness of his trial attorney. The superior court rejected Mack’s 

1 AS 11.41.100(a)(1)(A). 

2 Mack v. State, 2004 WL 1126281, at *8 (Alaska App. May 19, 2004) 

(unpublished). 

– 2 – 2738
 
claim; he appealed to this Court, and we again affirmed.3 

 Mack’s post-conviction relief 

appellate counsel did not file a petition for hearing in the Alaska Supreme Court. 

Mack subsequently filed a second application for post-conviction relief — 

i.e., a “Grinols” application.4 

 In the Grinols application, Mack raised two primary 

claims. First, Mack challenged the competence of his post-conviction appellate attorney 

— i.e., the attorney who represented him before this Court in his first post-conviction 

relief appeal. He argued that this appellate attorney had incompetently failed to file a 

petition for hearing or at least inform him of that option after he lost his post-conviction 

relief appeal in this Court. Second, Mack raised a “layered” post-conviction relief claim. 

In this layered claim, Mack argued that his post-conviction relief attorney in the superior 

court had incompetently failed to include, as one of the claims for post-conviction relief, 

that Mack’s attorney on direct appeal had a duty to file a petition for hearing or at least 

inform Mack of that option. 

Mack argued that the failure of his two appellate attorneys to inform him 

about the possibility of filing a petition for hearing precluded him from further pursuing 

his issues on appeal and later seeking habeas corpus relief in federal court (because he 

had failed to exhaust his state remedies).5 

 Mack argued that, to establish prejudice, he 

3 See Mack v. State, 2009 WL 1099432, at *3 (Alaska App. Apr. 22, 2009) 

(unpublished). Mack’s post-conviction relief attorney did not file a notice of appeal of the 

superior court’s denial of his post-conviction relief application. The superior court 

subsequentlyfound that this attorneyhad provided ineffective assistance of counsel byfailing 

to file the notice of appeal, and authorized Mack to pursue an untimely appeal, about a year 

after the denial of his post-conviction relief application. 

4 See Grinols v. State, 74 P.3d 889, 896 (Alaska 2003) (authorizing a criminal 

defendant to file a second post-conviction relief application challenging the effectiveness of 

their attorney in their first post-conviction relief proceeding). 

5 See 28 U.S.C. § 2254(b)(1). 

– 3 – 2738
 
was not required to show a reasonable possibility that the supreme court would have 

ruled in his favor on either petition; he only needed to show a reasonable possibility that, 

but for the deficient representation of his appellate attorneys, he would have filed a 

petition for hearing.6 

 Mack alleged that he met this standard, and he therefore asked the 

superior court to restore his right to file petitions for hearing in both of his prior appeals. 

Upon theState’smotion,the courtdismissedMack’s application. The court 

agreed with Mack that he was entitled to “meaningful consultation” from his appellate 

attorneys regarding his right to file a petition for hearing in the supreme court. But the 

court nonetheless concluded either that this obligation had been fulfilled or that Mack 

could not show prejudice. Mack now appeals that dismissal. 

We have previously addressed an attorney’s duty to consult with a criminal 

defendant or post-conviction relief applicant about their right to appeal a final judgment 

to this Court. We have held that an attorney has a legal duty to engage in meaningful 

consultation with a defendant regarding a direct appeal in one of two circumstances — 

when the defendant indicates an interest in pursuing an appeal, or when the defendant’s 

attorney knows or reasonably should know that a rational person in the defendant’s 

situation might want to appeal.7 

 In the context of a first post-conviction relief 

proceeding, we have similarly held that counsel has “the obligation to ascertain whether 

6 See Broeckel v. State, 900 P.2d 1205, 1208 (Alaska App. 1995) (holding that a 

defendant need only show that their attorney incompetently failed to preserve their right to 

appeal in order for that right to be automatically restored). 

7 Harvey v. State, 285 P.3d 295, 297 (Alaska App. 2012). In Harvey, we declined 

to decide whether a criminal defense attorney has a duty to consult with a convicted client 

about the possibility of filing a direct appeal outside of these two contexts. Id. 

– 4 – 2738
 
the defendant wishes to appeal and, if so, the obligation to initiate appellate 

proceedings.”8 

Mack’s case requires us to examine whether this obligation should extend 

to petitions for hearing — i.e., to requests for relief filed in the supreme court after a 

defendant loses in this Court.9 

 More specifically, we must determine (1) the scope of an 

attorney’s legal duty to inform a defendant who loses an appeal in this Court about the 

option of filing a petition for hearing in the supreme court, and (2) the circumstances 

under which a defendant is entitled to reinstatement of their right to file a petition for 

hearing if the attorney fails to fulfill this duty. 

For the reasons explained in this opinion, we conclude that Mack was 

entitled to meaningful consultation from each of his attorneys regarding the resolution 

of his case in this Court and his right to file a petition for hearing challenging our 

decision. We additionally conclude that, under the circumstances of this case, further 

proceedings in the superior court are necessary. 

An attorney’s duty to advise a criminal defendant or post-conviction relief 

applicant about the right to file an appeal 

We begin by discussing the right of appeal in Alaska criminal cases, and 

a defense attorney’s duty to advise a criminal defendant regarding this right. 

8 Wassilie v. State, 331 P.3d 1285, 1290 (Alaska App. 2014). 

9 This Court also occasionally receives petitions for hearing in situations where a 

person convicted of a misdemeanor filed their direct appeal of right in the superior court, 

rather than directly in this Court. See AS 22.07.020(d)(1) (providing that the right to appeal 

to the court of appeals is waived if an appellant chooses instead to appeal the final decision 

of the district court to the superior court under AS 22.10.020(e)). The principles discussed 

in this case apply equally to that situation. 

– 5 – 2738
 
In Alaska, a criminal defendant convicted after a trial has the right to appeal 

their criminal conviction(s) directly to this Court. The defendant’s appeal to this Court 

from a final criminal judgment is a “matter of right.”10 That is, the defendant has both 

the right to file the appeal, and the corresponding right to a decision on the merits by this 

Court.11 

Indigent criminal defendants are entitled to the assistance of courtappointed counsel both in the trial court and on direct appeal.12 And all criminal 

defendants are entitled to the effective assistance of counsel at both stages.13 The law is 

10 AS 22.07.020(d). 

11 See Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App. 1997) (discussing the 

distinction between the right to appeal and the right to petition). 

12 Right to counsel at trial: See Gideon v. Wainwright, 372 U.S. 335 (1963) (holding 

that, under the Sixth Amendment, an indigent defendant has the right to court-appointed 

counsel in all criminal prosecutions); Alexander v. State, 490 P.2d 910, 915-16 (Alaska 1971) 

(recognizing that article I, section 11 of the Alaska Constitution — and by extension, 

AS 18.85.100, the Public Defender Act — guarantees an indigent defendant in a criminal 

prosecution the right to the assistance of counsel). 

Right to counsel on direct appeal: See Halbert v. Michigan, 545 U.S. 605, 606 

(2005) (holding that indigent defendants have the right to appointed counsel for all first-tier 

criminal appeals, whether discretionaryor “as of right”); Douglas v. California, 372 U.S. 353 

(1963) (recognizing that a state affording a right of appeal to a criminal defendant must also 

supply counsel for an indigent defendant in order to make that appeal more than a 

“meaningless ritual”). 

See also AS 18.85.100(a) (providing that an indigent person under formal criminal 

charge is entitled “to be represented, in connection with the crime or proceeding, by an 

attorney to the same extent as a person retaining an attorney is entitled”). 

13 U.S. Const. amends. VI, XIV; Alaska Const. art. I, §§ 7, 11; Lafler v. Cooper, 566 

U.S. 156, 165 (2012) (recognizing that criminal defendants are entitled to the effective 

assistance of counsel in the criminal proceeding and on direct appeal); Risher v. State, 523 

P.2d 421, 423 (Alaska 1974) (“The mere fact that counsel represents an accused does not 

(continued...) 

– 6 – 2738
 
well-settled that, in the context of a direct appeal, effective assistance of counsel includes 

the duty to file a notice of appeal if directed to do so by the defendant.14 This obligation 

also exists under the Alaska Rules of Professional Conduct.15 

The first major case in Alaska addressing an attorney’s obligation to file a 

notice of appeal on behalf of a criminal defendant is Broeckel v. State.

16 In Broeckel, the 

defendant’s court-appointed attorney failed to file a notice of appeal, even though it was 

clear that the defendant intended to appeal.17 Relying on the rules of professional 

responsibility and the appellate rules, we held that defense counsel had acted 

incompetently in functionally withdrawing from the case without doing anything to 

preserve the defendant’s right to appeal.18 

We further held that, in the context of an attorney’s incompetent failure to 

preserve a criminal defendant’s right to appeal, a defendant did not need to establish that 

they would have prevailed on the merits of any of the appellate issues as a prerequisite 

13 (...continued) 

assure th[e] constitutionally-guaranteed assistance. The assistance must be ‘effective’ to be 

of any value.”). 

14 See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Harvey v. State, 285 P.3d 

295, 297, 306 (Alaska App. 2012). 

15 Alaska R. Prof. Conduct 1.2(a) (“In a criminal case, the lawyer shall abide by the 

client’s decision, after consultation with the lawyer, as to . . . whether to take an appeal.”). 

16 Broeckel v. State, 900 P.2d 1205 (Alaska App. 1995). 

17 Id. at 1206. 

18 Id. at 1207-08 (citing Alaska Appellate Rules 209 and 517, under which “[c]ounsel 

appointed to represent a defendant in the trial court . . . shall remain as appointed counsel 

throughout an appeal at public expense . . . and shall not be permitted to withdraw except 

upon the grounds authorized,” and former Disciplinary Rule 2-110(A)(2) of the Code of 

Professional Responsibility, which then provided that “a lawyer shall not withdraw . . . until 

he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client”). 

– 7 – 2738
 
to having the appeal reinstated.19 We adopted this approach for several reasons. First, 

we noted that “an attorney who incompetently fails to file a notice of appeal deprives the 

client of the right to an appeal, not just the right to a successful appeal.”20 Second, we 

observed that requiring a showing of prejudice before permitting an appeal to proceed 

would necessarily entail almost the same analysis that would be required in simply 

deciding the appeal on its merits. Finally, we pointed out that requiring a particularized 

showing of prejudice “would be of questionable value, since it would impose on the trial 

court the essentially circular task of reviewing the propriety of its own legal decisions.”21 

We also noted that the federal courts were nearly unanimous in concluding that a 

showing of traditional prejudice — i.e., that the appeal would have been successful — 

was not required under these circumstances.22 

Five years later, in Roe v. Flores-Ortega, the United States Supreme Court 

addressed this same issue in a case where the criminal defendant had not given a clear 

directive to file an appeal.23 At the outset, the Supreme Court identified the two ends of 

the spectrum defining defense counsel’s obligation to file an appeal: At one end, a 

defense attorney “acts in a manner that is professionally unreasonable” if the attorney 

fails to file an appeal after being expressly instructed by the defendant to do so.24 At the 

19 Id. at 1208.
 

20 Id. 


21 Id. 


22 Id. (collecting cases). 


23 Roe v. Flores-Ortega, 528 U.S. 470 (2000).
 

24 Id. at 477.
 

– 8 – 2738
 
other end, an attorney does not act incompetently when the attorney fails to file a notice 

of appeal after being explicitly told not to do so by the defendant.25 

The Court then addressed the middle-ground situation in which the 

defendant has not affirmatively indicated, one way or another, whether the defendant 

wishes to appeal. In that situation, the Court stated, it is necessary to examine an 

antecedent question — i.e., whether the attorney unreasonably failed to consult with the 

defendant about their right to appeal.26 The Court acknowledged that, because the 

decision to appeal rests with the defendant, “the better practice is for counsel routinely 

to consult with the defendant regarding the possibility of an appeal.”27 But the Court 

declined to adopt a bright-line rule that, as a constitutional matter, every failure to consult 

with the defendant about an appeal constitutes per se deficient performance.28 

Rather, the Court held that a defense attorney violates a defendant’s right 

to competent counsel if the attorney fails to consult with the defendant about the 

possibility of filing an appeal in one of two circumstances: (1) when the defendant has 

reasonably demonstrated to counsel an interest in appealing, or (2) when there are 

objective reasons to think that a rational defendant would want to appeal (for example, 

because there are nonfrivolous grounds for appeal).29 Ultimately, the Court held that the 

question of whether counsel performed deficiently must be based on “all the information 

25 Id.
 

26 Id. at 478.
 

27 Id. at 479.
 

28 Id. at 478-80.
 

29 Id. at 480.
 

– 9 – 2738
 
counsel knew or should have known,” and that the touchstone of the analysis is 

reasonableness.30 

The Court further held that if a defendant establishes that their attorney was 

incompetent in failing to file a notice of appeal as directed, or in failing to meaningfully 

consult with the defendant as the circumstances required, the defendant is not required 

to show that the appeal would have been meritorious. Instead, in order to restore the 

right to appeal, the defendant need only show that, but for the attorney’s incompetence, 

the defendant would have timely filed the appeal.31 In other words, the defendant need 

only show that they would have pursued the proceeding if properly advised, not that the 

proceeding itself would have been successful. 

These dual holdings — that an attorney has a duty to meaningfully consult 

with a defendant about their appellate rights as the circumstances require and that 

prejudice is shown by establishing that, but for this incompetence, a timely appeal would 

have been filed — were later applied and extended by this Court. 

30 Id. at 480-81. The Court also expressed its belief that, in the vast majority of 

cases, “courts evaluating the reasonableness of counsel’s performance using the inquiry we 

have described will find . . . that counsel had a duty to consult with the defendant about an 

appeal.” Id. at 481. 

31 Id. at 484. This is sometimes called “presumed prejudice” — i.e., the defendant 

is presumed to have suffered an injury from the failure to file the appeal, and the defendant 

need not show that any particular issue would have succeeded on the merits. But this phrase 

does not mean the defendant need not show any prejudice. The defendant must still show 

that but for counsel’s deficient failure to consult with them about an appeal, the defendant 

would have timely appealed. That is, prejudice in this context is defined as the deprivation 

of a proceeding, rather than the deprivation of a successful proceeding. As the Supreme 

Court said in Flores-Ortega, “If the defendant cannot demonstrate that, but for counsel’s 

deficient performance, he would have appealed, counsel’s deficient performance has not 

deprived him of anything, and he is not entitled to relief.” Id. 

– 10 – 2738
 
In Harvey v. State, we recognized that a defense attorney is obligated, at the 

conclusion of a criminal case in the trial court, to meaningfully consult with a convicted 

client about the possibility of pursuing an appeal in either of two situations: “(1) when 

the defendant has given the attorney a reasonable indication that they are interested in 

appealing, or (2) when there are objective reasons to think that a rational person in the 

defendant’s position might want to appeal.”32 We held that this duty to meaningfully 

consult about the possibility of filing an appeal and the likelihood of success applies to 

both court-appointed and retained counsel.33 Finally, we held that if the defendant 

decides to pursue an appeal of their conviction, the attorney — whether court-appointed 

or private — must take steps to preserve the defendant’s right to appeal if the defendant 

does not yet have a substitute attorney to take the needed steps.34 

We have extended this duty to court-appointed attorneys who represent a 

criminal defendant in post-conviction relief proceedings in the trial court.35 In Alaska, 

regardless of whether a direct appeal is filed, a criminal defendant may file a collateral 

attack on their conviction, initiating a “post-conviction relief” proceeding in the original 

trial court of conviction. Claims that could have been raised on direct appeal generally 

cannot be raised in an application for post-conviction relief.36 But certain claims can 

only be raised for the first time in an application for post-conviction relief — for 

32 Harvey v. State, 285 P.3d 295, 305 (Alaska App. 2012) (citing Flores-Ortega, 528 

U.S. at 480). As we noted earlier, we declined to decide in Harvey whether a criminal 

defense attorney has a duty to consult with a convicted client about the possibility of filing 

an appeal outside of these two contexts. Id. at 297. 

33 Id. at 306. 

34 Id. at 297, 302, 306. 

35 See Wassilie v. State, 331 P.3d 1285, 1289 (Alaska App. 2014). 

36 AS 12.72.020(a)(2). 

– 11 – 2738
 
example, most claims of ineffective assistance of counsel,37 or claims of newly 

discovered evidence after the window for filing a motion for a new trial in the original 

criminal case has expired.38 

This Court has appellate jurisdiction over post-conviction relief 

proceedings. Thus, if a post-conviction relief applicant (i.e., the criminal defendant) is 

unsuccessful in the trial court, the applicant has the right to appeal that decision to this 

Court. Like a direct appeal, an appeal from a final post-conviction relief judgment is a 

“matter of right,” in that the applicant has the right to a decision on the merits in this 

Court. And in Alaska, indigent criminal defendants are entitled to the assistance of 

court-appointed counsel to litigate a first application for post-conviction relief and any 

appeal from the trial court’s decision on that application.39 

37 See AS 12.72.010(9); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) 

(holding that, because the trial record is ordinarily insufficient to allow an appellate court to 

resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance 

claims will generally only be addressed on appeal when the claims have been litigated in a 

new trial motion or in an application for post-conviction relief). 

38 See Alaska R. Crim. P. 33(c) (“A motion for a new trial based on the ground of 

newly discovered evidence may be made only before or within 180 days after final 

judgment[.]”); AS 12.72.010(4) (allowing post-conviction relief claims based on material 

facts not previously presented and heard); Alaska R. Crim. P. 35.1(a)(4) (same). 

39 AS 18.85.100(a), (c); Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (holding 

that the due process clause of the Alaska Constitution — article I, section 7 — guarantees 

the right to counsel in a first application for post-conviction relief); Wassilie, 331 P.3d at 

1289-91 (recognizing that an indigent defendant is entitled to court-appointed counsel when 

litigating an appeal from the trial court’s decision on a first post-conviction relief application, 

including a dismissal based on a certificate of no arguable merit). We note that there is no 

federal constitutional right to counsel in a post-conviction collateral proceeding. 

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). 

– 12 – 2738
 
In Wassilie v. State, we addressed a particular post-conviction relief 

situation — where court-appointed post-conviction relief counsel files a certificate of no 

arguable merit as to the defendant’s application.40 We held that even an attorney who 

files a certificate of no merit has an obligation “to ascertain [the defendant’s] desires 

regarding a potential appeal, and to take the steps necessary to preserve [the] right of 

appeal if that is what [the defendant] wishe[s] to do.”41 These final obligations are 

“components of the attorney’s duty as the defendant’s representative in the trial court — 

analogous to the duty we recognized in Harvey v. State for trial attorneys who represent 

defendants in criminal prosecutions.”42 We recognized that there were distinctions 

between the original criminal prosecution and the post-conviction relief context, but we 

ultimately concluded that “these distinctions [did] not call for a different result” in postconviction relief cases.43 

In sum, under Broeckel, Harvey, and Wassilie, a criminal defendant in 

Alaska has the right to appeal a final criminal or post-conviction relief judgment, and a 

criminal defendant who is indigent is entitled to court-appointed counsel — and the 

effective assistance of that counsel — in pursuing a direct appeal or an appeal from a 

judgment on a first post-conviction relief application. If a defendant’s attorney 

unreasonably fails to consult with the defendant regarding the appeal, and the defendant 

40 Wassilie, 331 P.3d at 1286; see also Alaska R. Crim. P. 35.1(e)(2) (requiring courtappointed post-conviction relief counsel to pursue one of three options when representing 

a post-conviction relief applicant: file an amended application for post-conviction relief, rest 

on the claims raised in the defendant’s pro se application, or file a certificate of no arguable 

merit, certifying that the defendant has no colorable claims for relief). 

41 Wassilie, 331 P.3d at 1288. 

42 Id. at 1290. 

43 Id. at 1288, 1290-91. 

– 13 – 2738
 
can showa reasonable possibility that the attorney’s deficient representation was the butfor cause of their failure to appeal, then the defendant is entitled to reinstatement of the 

appeal, regardless of a showing of merit on any of the underlying claims of error. 

Why we conclude that an appellate attorney has a duty to consult with their 

client regarding the possibility of filing a petition for hearing, and that the 

failure to consult can form the basis for an ineffective assistance of counsel 

claim 

As we noted earlier, if a criminal defendant’s appeal is unsuccessful in this 

Court, the defendant may seek review in the Alaska Supreme Court by filing a petition 

for hearing — i.e., a pleading challenging this Court’s ruling on one or more issues and 

requesting the supreme court’s review.44 Unlike an appeal in this Court, the supreme 

court’s decision to grant or deny a petition for hearing — i.e., its decision to review the 

merits of a case — is discretionary on the part of that court.45 That is, a party has no right 

to a decision on the merits. However, a party has the right to request such review 

through a petition for hearing from a final decision of this Court.46 

Thus, the question we must confront is whether, and under what 

circumstances, an appellate attorney before this Court has an obligation to inform their 

client of an adverse final decision and the option of filing a petition for hearing in the 

supreme court. In short, we must decide whether to extend the rule of Roe v. FloresOrtega and Harvey v. State to the petition for hearing context. 

44 Alaska R. App. P. 301-05. 

45 Compare AS 22.05.010(d) & AS 22.07.030, with AS 22.07.020(d). 

46 See AS 22.07.030 (providing that “[a] party may apply to the supreme court for 

review of a final decision of the court of appeals”); Alaska R. App. P. 302(a)(1) (providing 

that “[a] petition for hearing may be filed in the supreme court with respect to any final 

decision of the court of appeals”). 

– 14 – 2738
 
As an initial matter, we note that an appellant’s attorney has an ethical duty 

to confer with their client regarding the status of the appeal and doing so is part of their 

duties to their client in this Court.47 Under Alaska Professional Conduct Rule 1.4(a), “A 

lawyer shall keep a client reasonably informed about the status of a matter undertaken 

on the client’s behalf[.]” The lawyer must also “explain a matter to the extent reasonably 

necessaryto permitthe clienttomake informed decisions regardingthe representation.”48 

These rules clearly require an attorney to inform a criminal appellant when this Court 

renders a decision — and to discuss the option of filing a petition for hearing to the 

supreme court.49 

We conclude that the failure to fulfill this ethical duty can also amount to 

ineffective assistance of counsel. We reach this conclusion for several reasons. 

First, the petition for hearing is an important part of the appellate process 

in Alaska, and it serves as the final opportunity in state court for the defendant to have 

their claims heard. Under the Alaska Appellate Rules, the appellate process concludes 

only after a petition for hearing has been disposed of, or the time period for filing a 

47 Cf. Wassilie, 331 P.3d at 1288-90 (recognizing that, under Alaska Professional 

Conduct Rule 1.16, an attorney representing a post-conviction relief applicant has a duty, 

before terminating representation, to ascertain whether the applicant wishes to appeal and 

ensure that, if necessary, the right to appeal is preserved — and that doing so is a 

“component[] of the attorney’s duty as the defendant’s representative in the trial court — 

analogous to the duty we recognized in Harvey v. State for trial attorneys who represent 

defendants in criminal prosecutions”). 

48 Alaska R. Prof. Conduct 1.4(a). 

49 See also ABA Standards for Criminal Justice: Defense Function § 4-9.2(i) (4th 

ed. 2017) (providing that, if further appellate review is possible, appellate counsel should 

advise of further options and deadlines). 

– 15 – 2738
 
petition for hearing has passed.50 That is, in both the direct appeal and post-conviction 

relief contexts, the petition for hearing is a continuation — and ultimately the completion 

— of the state appellate process.51 As the Hawai’i Supreme Court has explained, review 

before a state’s highest court “provides the last pathway to ensure that the defendant’s 

substantial rights were observed during the trial and sentencing phases of the 

proceedings.”52 

50 See Alaska R. App. P. 507(b), (c), (d) (providing that the judgment of the appellate 

court takes effect and full jurisdiction over the case returns to the trial court on the day after 

the time for filing a petition for hearing expires, on the day after the petition for hearing is 

denied, or, in a case decided by the supreme court, on the day after the time for filing a 

petition for rehearing expires or on the day after the supreme court disposes of the case on 

rehearing). 

51 Cf. Kargus v. State, 169 P.3d 307, 313 (Kan. 2007) (recognizing that “while the 

determination of whether review will be granted is discretionary with th[e] [supreme] court, 

the right to petition for review is not qualified or contingent. It is a right which is a part of 

‘the appeal’ and one of the stages in the proceedings to which the right to counsel attaches”); 

People v. Valdez, 789 P.2d 406, 408 (Colo. 1990) (noting that, although the Colorado 

Supreme Court had absolute discretion whether to grant or deny a petition for discretionary 

review, such a petition was “an application of right” — i.e., the criminal defendant “had a 

right to file his application for certiorari review” and the concomitant right to the assistance 

of counsel in preparing the petition). 

52 State v. Uchima, 464 P.3d 852, 863 (Haw. 2020). The Alaska Supreme Court has 

decided questions of law involving substantial rights on petitions for hearing in both direct 

criminal appeals and post-conviction relief cases. See, e.g., Young v. State, 374 P.3d 395, 

399 (Alaska 2016) (on defendant’s petition for hearing in direct appeal, adopting new test 

for evaluating admissibility of out-of-court eyewitness identifications); Adams v. State, 261 

P.3d 758, 764 (Alaska 2011) (on defendant’s petition for hearing in direct appeal, deciding 

the plain error standard); Stone v. State, 255 P.3d 979, 980-81 (Alaska 2011) (on defendant’s 

petition for hearing in post-conviction relief case, holding that defendant had right to require 

court-appointed counsel to file a petition for discretionary review of sentence); Gudmundson 

v. State, 822 P.2d 1328, 1330-31 (Alaska 1991) (on defendant’s petition for hearing in 

post-conviction relief	 case, holding that defendant’s claim challenging a statute’s 

(continued...) 

– 16 – 	 2738
 
Second, as a practical matter, there is a short time frame for filing a petition 

for hearing; any petition for hearing must be filed within thirty days of this Court’s 

decision (fifteen days at the time of Mack’s appeals).53 Thus, like a defendant seeking 

to file an initial appeal, a would-be petitioner “needs effective representation and advice 

in [a] relatively short period” and “it is often impossible or impracticable for the 

defendant to obtain substitute counsel, and to meaningfully consult with the new 

attorney, within this short time frame.”54 To deprive a criminal defendant of effective 

consultation at this stage would be inconsistent with the fair and efficient administration 

of justice.55 

Third, other jurisdictions have held that an attorney in a criminal appeal has 

an obligation to inform their client of the right to seek further review in the state’s 

highest court and that the failure to do so can form the basis of an ineffective assistance 

52 (...continued) 

constitutionality was “jurisdictional in character” and could be brought at any time). 

53 Alaska R. App. P. 303(a); see Supreme Court Order No. 1823 (dated Apr. 2, 2014; 

eff. Oct. 15, 2014) (changing deadline for filing a petition for hearing from fifteen days to 

thirty days). 

54 Wassilie v. State, 331 P.3d 1285, 1288 (Alaska App. 2014) (citing Harvey v. State, 

285 P.3d 295, 304 (Alaska App. 2012)). 

55 See Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000), aff’d in part, 74 P.3d 

889, 895 (Alaska 2003) (“[I]t would be absurd [for a defendant] to have the right to 

appointed counsel who is not required to be competent.” (quoting Iovieno v. Comm’r of 

Corr., 699 A.2d 1003, 1010 (Conn. 1997))); see also Risher v. State, 523 P.2d 421, 423 

(Alaska 1974) (“The assistance must be ‘effective’ to be of any value.”) (citations omitted). 

Cf. Uchima, 464 P.3d at 863 (noting that discretionary review before the state’s highest court 

“is an oftentimes complicated part of the criminal process such that not providing a defendant 

the assistance of counsel would restrict the defendant’s ability to be meaningfully heard”) 

(citations omitted). 

– 17 – 2738
 
claim.56 This includes jurisdictions where there is no further right to the assistance of 

counsel in actually filing the petition.57 Particularly in Alaska — where appointed 

counsel continues to represent an indigent defendant on a petition for hearing58 — an 

56 See, e.g., People v. Valdez, 789 P.2d 406, 407-08 (Colo. 1990); Kargus v. State, 

169 P.3d 307, 313 (Kan. 2007); Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 

2006); Tolliver v. State, 629 S.W.2d 913, 915 (Tenn. Crim. App. 1981); Dodson v. Dir. of 

Dep’t of Corr., 355 S.E.2d 573, 577 (Va. 1987); State v. Mosley, 307 N.W.2d 200, 217-18 

(Wis. 1981). 

57 See, e.g., Ex parte Owens, 206 S.W.3d at 673 (holding that, while an attorney need 

not prepare a petition for discretionary review or advise on the merits of seeking such review, 

the appellate attorney “must not neglect to timely inform his client that he has the right to 

seek such review,” even in instances where the attorney filed an Anders brief, i.e., a brief 

explaining why there are no arguable claims, in the intermediate appellate court); Mosley, 

307 N.W.2d at 217-18 (holding that, if appointed counsel determines that a discretionary 

petition to the state supreme court has no arguable merit, the attorney need not file the 

petition but must still explain the reasons to the defendant to assist the defendant in preparing 

a list of pro se reasons for review); Tolliver, 629 S.W.2d at 915 (holding that, even though 

the attorney has no obligation to pursue discretionary appellate review on the defendant’s 

behalf, the attorney must alert the defendant to the possibilityof seeking discretionary review 

and “failure of . . . counsel to so advise [the defendant] of this right may result in a finding 

that his counsel ineffectively represented him”). 

58 See Alaska R. App. P. 209(b)(4); Latham v. Anchorage, 165 P.3d 663, 664 (Alaska 

App. 2007) (discussing AS 18.85.100(a)). The superior court in this case incorrectly 

interpreted the language of AS 18.85.100(c) as precluding the appointment of counsel on a 

“petition for hearing” in a post-conviction relief case. In 1995, the legislature amended AS 

18.85.100(c) to establish certain limits on the right to representation in post-conviction relief 

cases, precluding the appointment of counsel for purposes of bringing “a petition for review 

or certiorari from an appellate court ruling on an application for post-conviction relief[.]” 

AS 18.85.100(c), enacted by SLA 1995, ch. 79, § 10. The superior court interpreted this 

language as including petitions for hearing. 

But a “petition for hearing” is distinct from a “ petition for review.” A “petition 

for hearing” is a request for review of a final appellate court decision — i.e., a request filed 

in the next highest appellate court (generally, the supreme court) following a final decision 

(continued...) 

– 18 – 2738
 
attorney’s duties to their client in this Court include the obligation to inform them of an 

adverse final decision and the right to seek review of that decision in the supreme court. 

What standard of ineffective assistance of counsel applies when a 

defendant claims that appellate counsel failed to inform them of the right 

to file a petition for hearing 

The next question is what standard of ineffective assistance of counsel — 

i.e., what standard of competence and prejudice — applies to the type of claims raised 

by Mack. 

The Kansas Supreme Court addressed these questions in a decision we find 

persuasive. In Kargus v. State, the Kansas court considered a situation at one of the 

extremes addressed in Flores-Ortega: a criminal defendant claimed that, after the 

Kansas Court of Appeals affirmed his convictions on direct appeal, his appellate counsel 

failed to file a petition for discretionary review in the Kansas Supreme Court, despite his 

request that a petition be filed.59 (In Kansas, this discretionary petition is called a 

“petition for review.”) The defendant argued that the failure to file the petition 

constituted ineffective assistance of counsel entitling him to reinstatement of his right to 

58 (...continued) 

in the intermediate appellate court. A “petition for review” is a request for interlocutory 

review, the purpose of which is to challenge a particular court ruling prior to final judgment. 

Compare Alaska R. App. P. 302, with Alaska R. App. P. 402. The legislative history of the 

enactment of AS 18.85.100(c) shows that the legislature specifically rejected a version of the 

bill that would have eliminated the right to representation on “a petition for hearing from an 

appellate court ruling on an application for post-conviction relief[.]” See House Bill 201, 

19th Leg., 1st Sess., at § 10 (as introduced on Feb. 27, 1995). 

59 Kargus v. State, 169 P.3d 307, 309 (Kan. 2007). 

– 19 – 2738
 
file the petition. The defendant argued that, as in Flores-Ortega, he did not need to show 

that he would have prevailed on the petition itself.60 

The Kansas court held that a criminal defendant is entitled to the 

appointment of counsel in filing (or defending) a petition for discretionary review to the 

supreme court.61 The court further held that the “statutory right to counsel includes the 

right to effective assistance of counsel.”62 

The courttherefore confrontedthequestion —germane toour decision here 

— of what standard of ineffective assistance of counsel applies when the complaint is 

that counsel failed to file a discretionary petition for supreme court review. The Kansas 

court compared the federal test for ineffective assistance of counsel claims — i.e., the 

“Strickland” test — with the test that applies specifically to ineffectiveness claims in the 

context of failing to file or consult with a criminal defendant regarding the right to appeal 

— i.e., the Flores-Ortega test.63 

To establish a claim of ineffective assistance of counsel under Strickland 

v. Washington, a criminal defendant must show that (1) the attorney’s performance fell 

below an objective standard of reasonableness (the performance prong); and (2) but for 

the attorney’s incompetent performance, there is a reasonable probability that the 

60 Id. at 309-10. 

61 Id. at 312-13. The court added, however, that, even if there were no right to 

counsel to file for discretionary review, the defendant’s appellate attorney would still have 

at least “the obligation merely to inform the defendant of the fact that his or her conviction 

ha[d] been affirmed by the Court of Appeals and that the defendant could pursue 

discretionary review on his or her own.” Id. 

62 Id. at 313. 

63 Id. at 313-16. 

– 20 – 2738
 
outcome of the proceedings would have been different (the prejudice prong).64 (The 

general test in Alaska — set out in Risher v. State — is similar, but has a lower prejudice 

threshold, requiring a criminal defendant to show only that there is a “reasonable 

possibility” that the attorney’s incompetence contributed to the conviction.65) 

As we noted earlier, however, under Flores-Ortega, a defendant need not 

show that the appeal itself would have resulted in a reversal of their conviction or 

sentence; a defendant need only show that, but for the attorney’s deficient conduct — 

i.e., the failure to consult or timely file the appeal — the defendant would have filed an 

appeal. 

After addressing each standard, the Kansas Supreme Court extended 

Flores-Ortega to “petitions for review” — the type of discretionary petitions that are 

called “petitions for hearing” in Alaska.66 The court concluded that Flores-Ortega set 

out the appropriate standard because — like the failure to advise a criminal defendant 

regarding the initial right to file an appeal — the failure to advise on, or timely file, a 

discretionary petition involves the loss of an entire proceeding.67 That is, while 

Strickland applies to an attorney’s deficient performance during the course of a 

proceeding, Flores-Ortega applies “when counsel’s performance causes a forfeiture of 

64 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 

65 State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995) (citing Risher v. State, 

523 P.2d 421, 425 (Alaska 1974)). 

66 Kargus, 169 P.3d at 320. 

67 Id. at 315-16 (comparing Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000), with 

Strickland, 466 U.S. at 687). 

– 21 – 2738
 
a proceeding” — that is, when the defendant is deprived of any assistance in the 

proceeding.68 

The Kansas court then set out the standard for evaluating a claim that 

counsel was ineffective for failing to file a petition for discretionary review following an 

adverse decision in the intermediate appellate court —a standard that reflects the FloresOrtega framework: 

(1) If a defendant has requested that a petition for review be 

filed and the petition was not filed, the appellate attorney 

provided ineffective assistance; (2) a defendant who 

explicitly tells his or her attorney not to file a petition for 

review cannot later complain that, by following instructions, 

counsel performed deficiently; (3) in other situations, such as 

where counsel has not consulted with a defendant or a 

defendant’s directions are unclear, the defendant must show 

(a) counsel’s representation fell below an objective standard 

of reasonableness, considering all the circumstances; and 

(b) the defendant would have directed the filing of the 

petition for review.[69] 

The court further held that, consistent with Flores-Ortega, the defendant did not need to 

showthat the petition would have been granted or that, after consideration of the petition, 

the supreme court would have granted relief to the defendant.70 

We conclude that the test set out by the Kansas Supreme Court is consistent 

with our case law, and we adopt it. We accordingly extend the rule of Flores-Ortega to 

petitions for hearing. 

68 Id. at 314, 316. 

69 Id. at 320. 

70 Id. at 318, 320. 

– 22 – 2738
 
In particular, as we previously discussed, an attorney before this Court has 

an obligation to inform a client about an unsuccessful appeal and the right to file a 

petition for hearing in the supreme court. The failure to do so can form the basis of an 

ineffective assistance of counsel claim. 

But in the context of the third situation discussed in Kargus — i.e., where 

counsel has not consulted with a defendant or the defendant’s directions are unclear — 

counsel’s failure to adequately inform a defendant about the right to file a petition for 

hearing is not automatically ineffective as a constitutional matter. Rather, “where 

counsel has not consulted with a defendant or a defendant’s directions are unclear, the 

defendant must show [that] counsel’s representation fell below an objective standard of 

reasonableness, considering all the circumstances[.]”71 Generally, this can be 

demonstrated through evidence establishing one of the two prongs set out in FloresOrtega and Harvey: either that (1) the defendant has given the attorney a reasonable 

indication that they are interested in pursuing further review if they lose in this Court, or 

(2) there are objective reasons to think that a rational person in the defendant’s position 

might want to file a petition for hearing.72 (We nonetheless echo the advisement by the 

Kansas Supreme Court that best practice is for an appellate attorney to consult with their 

client regarding a petition for hearing in all situations, regardless of whether the failure 

to do so would constitute ineffective assistance of counsel as a constitutional matter.73) 

71 Id. at 320. 

72 Flores-Ortega, 528 U.S. at 480; Harvey v. State, 285 P.3d 295, 305 (Alaska App. 

2012). 

73 Kargus, 169 P.3d at 320. Cf. Flores-Ortega, 528 U.S. at 479 (recognizing that, 

in the context of a trial attorney’s duty to a criminal defendant, “the better practice is for 

counsel routinely to consult with the defendant regarding the possibility of an appeal,” even 

if not every failure to do so constitutes ineffective assistance of counsel as a constitutional 

(continued...) 

– 23 – 2738
 
Ifthedefendant establishesthattheir counsel’srepresentationwasdeficient, 

the defendant must further show a reasonable possibility that, but for this deficient 

performance, the defendant would have directed the filing of a petition for hearing.74 The 

defendant need not show that the petition itself would have resulted in a successful 

outcome. 

In Mack’s case, the superior court required Mack to prove that any petition 

would have been successful. The court declined to presume prejudice based largely on 

the fact that petitions for hearing are considered “second-tier” appellate review. 

But the same concerns raised in Broeckel apply equally in the context of 

petitions for hearing.75 When an attorney unreasonably fails to alert a defendant to the 

availability of further review in the supreme court, and as a result of this deficiency, the 

defendant fails to file a petition for hearing, the defendant has been deprived of an entire 

proceeding. Moreover, requiring that a defendant show that their petition for hearing 

would be successful as a condition of allowing an untimely petition would require courts 

to engage in almost the same analysis that would be required in deciding the petition for 

hearing. And it would impose on this Court, and the superior court, the “essentially 

73 (...continued) 

matter). 

74 See Flores-Ortega, 528 U.S. at 484; Kargus, 169 P.3d at 320. 

75 See Kargus, 169 P.3d at 312-13, 316 (recognizing the distinction between the firsttier appellate stage, where the right to counsel is constitutional, and the second-tier 

discretionary review stage, where the right to counsel under Kansas law is statutory, but 

concluding that presumptive prejudice is the more appropriate standard because of the loss 

of an entire proceeding). 

– 24 – 2738
 
circular task of reviewing the propriety of [their] own legal decisions.”76 Identical 

concerns about judicial efficiency therefore apply in this context. 

To sum up: We hold that an attorney representing a client in this Court has 

an obligation to consult with their client about an adverse decision rendered by this Court 

and the right to file a petition for hearing seeking further review in the supreme court. 

If a defendant (like Mack) argues in a post-conviction relief proceeding that their 

appellate attorney failed to inform them about the right to file a petition for hearing, the 

defendant should be permitted to file an untimely petition for hearing, without proving 

the merits of the underlying issues, if three conditions are met: 

(1) the post-conviction relief application is deemed to be 

timely, 

(2) the defendant establishes that their appellate attorney’s 

failure to consult with them regarding the petition for hearing 

to the supreme court was unreasonable under the totality of 

the circumstances, and 

(3) the defendant establishes a reasonable possibility that 

their attorney’sunreasonable failure to consult with themwas 

the but-for cause of their failure to file a petition for 

hearing.[77] 

A more detailed look at the facts of Mack’s case and why we remand for 

further proceedings 

We now return to the facts of this case. 

76 Broeckel v. State, 900 P.2d 1205, 1208 (Alaska App. 1995). 

77 We express no opinion regarding the standard that should govern the supreme 

court’s acceptance of a late-filed petition for hearing — i.e., a petition that is filed directly 

in the supreme court outside the 30-day deadline, but generally still within the relatively 

immediate aftermath of a decision in this Court. See Alaska R. App. P. 303(a) (setting a 30­

day deadline for filing a petition for hearing in the supreme court). 

– 25 – 2738
 
As we noted earlier, Mack filed a second application for post-conviction 

relief, which is the genesis of the current appeal. In this application, Mack alleged that 

his appellate attorney in his first post-conviction relief action (Assistant Public Advocate 

Dan Bair) neglected to file a petition for hearing or at least inform him of that option 

following his unsuccessful post-conviction relief appeal in this Court. Mack also raised 

a “layered” claim for relief. In this layered claim, Mack alleged that his prior postconviction relief attorney in the superior court (Michael Smith) incompetently failed to 

include, as one of the claims for post-conviction relief, that Mack’s direct appeal attorney 

(Randall Cavanaugh) neglected to file a petition for hearing, or at least inform Mack of 

that option following his unsuccessful direct appeal in this Court. 

Mack argued that both appellate attorneys were ineffective, pointing out 

that their inaction precluded him from further pursuing his claims and seeking habeas 

corpus relief in federal court (because he had failed to exhaust his state remedies).78 

Mack argued that, to establish prejudice, he was not required to show that he would have 

prevailed on the issue(s) that his attorney could have raised in a petition for hearing; 

rather, he needed to show only that he would have filed a petition for hearing had he 

been properly advised of his right to do so. Mack alleged that he met this standard, and 

he therefore asked the superior court to restore his right to file petitions for hearing in 

both of his prior appeals. 

Withhis application, Mackprovided the superior court with affidavits from 

himself and the three attorneys around whom Mack’s claims were centered. 

Dan Bair represented Mack on appeal of the denial of his first postconviction relief application. In his affidavit, Bair stated that within a week of this 

Court’s decision on appeal, Bair sent a copy of our decision to Mack, along with a letter. 

78 See 28 U.S.C. § 2254(b)(1). 

– 26 – 2738
 
In the letter, Bair briefly discussed his opinion of this Court’s resolution of Mack’s postconviction appeal, noting that the governing case law on the issue was not favorable. 

Bair’s letter, which is in the record before us, did not include any reference 

to the possibility of filing a petition for hearing in the Alaska Supreme Court or any 

mention of the then fifteen-day deadline. Instead, Bair advised Mack about pursuing a 

“Grinols action” — that is, a successive post-conviction relief action that alleges that the 

defendant’s first post-conviction relief attorney provided ineffective assistance of 

counsel. Bair noted in the letter: “With regard to your Grinols issue, now that the Court 

of Appeals has issued its decision, the clock has begun on your Grinols action. I would 

urge you to file your Grinols [application] now — if you have not done so.” (He did not 

identify the issues that he thought Mack might wish to raise in a Grinols application.) 

In his later affidavit, Bair acknowledged that neither his letter nor his 

handwritten notes of his conversations with Mack contained any reference to a petition 

for hearing. He also attested that he had no memory of discussing the issue with Mack. 

Bair stated that he “had no tactical reason for not informing Mr. Mack what a petition for 

hearing was or his right to proceed with one,” as he viewed the decision as belonging to 

Mack. 

(Another indication that Bair did not inform Mack about his right to file a 

petition for hearing is the fact that Bair misadvised Mack about the running of the 

“clock” on Mack’s Grinols application. There is a one-year time period for filing a 

Grinols application. This period does not begin running until the decision on the prior 

application for post-conviction relief is “final under the Alaska Rules of Appellate 

Procedure”79 — and a decision is not final under the Alaska Appellate Rules until the 

79 AS 12.72.025. 

– 27 – 2738
 
time for filing a petition for hearing has run.80 Thus, the time period for filing a Grinols 

application did not begin with the issuance of this Court’s decision, as Bair’s letter 

stated; it started only after the deadline for filing a petition for hearing in the supreme 

court had passed. Bair’s letter made no reference to this additional period.) 

MichaelSmith, oncontract with theOfficeofPublicAdvocacy,represented 

Mack in his first application for post-conviction relief in the superior court. In his 

affidavit, Smith stated that he did not recall whether he was aware that Randall 

Cavanaugh (Mack’s attorney on direct appeal) had not filed a petition for hearing. He 

also stated that he “was aware that filing a petition for hearing to the Alaska Supreme 

Court is necessary to preserve issues for a potential federal habeas corpus claim” and that 

he “did not discuss with Mr. Mack the fact that, due to Cavanaugh’s failure to file a 

petition for hearing, Mr. Mack was effectively barred from litigating his case in federal 

court.” 

RandallCavanaugh provided an affidavit statingthat he couldnotsay “with 

absolute[] certainty” that he spoke with Mack about “a petition for review [sic]

81 to the 

Alaska Supreme Court given the passage [of] time and lack of materials to refresh [his] 

recollection.” He did note that he typically advises his clients “regarding their petition 

rights,” but he believed that the Office of Public Advocacy, which contracted with 

Cavanaugh to represent Mack on direct appeal, was not paying for “discretionary 

80 Alaska R. App. P. 507(d). At the time of Mack’s post-conviction relief appeal, the 

rules governing the return of jurisdiction to the trial court following an appeal were set out 

in Alaska Appellate Rules 507 and 512. See Supreme Court Order No. 1973 (dated 

Aug. 18, 2021; eff. Apr. 15, 2022). 

81 As discussed previously, the phrases “petition for review” and “petition for 

hearing” are terms of art and distinct from one another under the Alaska Appellate Rules. 

A “petition for hearing” is a request for review of a final appellate court decision, while a 

“petition for review” is a request for interlocutory review. 

– 28 – 2738
 
actions” at the time. In contrast, Cavanaugh did recall discussing with Mack the option 

of filing a post-conviction relief application. 

For his part, Mack maintained that he “wanted to do everything possible in 

state and federal court” to challenge his conviction and that he never told an attorney to 

forgo any legal option. Specifically, Mack stated that he did not remember whether he 

had discussed with Cavanaugh or Bair the option of filing an “appeal” in the supreme 

court, but had he known he could “have appealed [each] case further,” he would have 

done so.82 

The State filed a motion to dismiss Mack’s subsequent post-conviction 

relief application, arguing that Mack did not have a right to counsel to file a “second-tier, 

discretionary appeal” like a petition for hearing. The State also argued that Mack failed 

to demonstrate that he was prejudiced by the absence of an opportunity to file a petition 

for hearing because he did not show that he could have prevailed on any appellate issues 

or federal habeas litigation if a petition for hearing had been filed. 

Withoutholdingahearing,thesuperior court dismissed Mack’s application. 

The court agreed with Mack that he was entitled to “meaningful consultation” from his 

appellate attorneys regarding his right to file a petition for hearing in the supreme court 

— that his attorneys had a “duty to counsel” him “as to appellate procedure.” But the 

82 The State takes Mack to task for stating that he would have “appealed the case” 

 the supreme court, rather than file a “petition for hearing,” noting that a criminal defendant 

as no right to “appeal” from this Court to the supreme court. The State asserts that “Mack 

ffered no evidence that he would have filed a petition for hearing (i.e., as opposed to an 

appeal’).” But this argument elevates form over substance and suggests that an indigent 

efendant’s lack of understanding of appellate terminology is dispositive, when it is 

therwise clear in the context of Mack’s affidavit — and the larger issues being litigated — 

at Mack was asserting that he would have pursued a further remedy in the supreme court 

ad he known of that option. Indeed, we note that, in its order, the superior court made the 

ame semantic mistake as Mack. 

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– 29 – 2738
 
court nonetheless concluded either that this obligation had been fulfilled or that Mack 

could not show prejudice. 

More specifically, with respect to Bair — Mack’s attorney in his postconviction relief appeal — the court found that Bair did meaningfully consult with Mack 

about his appellate rights when he sent Mack a letter following his unsuccessful appeal 

in this Court, telling Mack that he could file a Grinols action. With respect to Cavanaugh 

— Mack’s attorney on direct appeal — the court found that while Mack had set forth a 

prima facie case that Cavanaugh failed to meaningfully consult with him about his right 

to file a petition for hearing, Mack did not show a reasonable possibility that he would 

have prevailed on the issues that could have been raised in the petition for hearing in his 

direct appeal. 

Our resolution of Mack’s claim against his appellate counsel in his first 

post-conviction relief application 

We disagree with the superior court that Mack failed to set out a prima facie 

case of ineffective assistance as to Bair, his first post-conviction appellate counsel. In 

Bair’s letter (sent in the days following the issuance of this Court’s decision), Bair 

advised Mack about a pursuing a “Grinols action”: “With regard to your Grinols issue, 

now that the Court of Appeals has issued its decision, the clock has begun on your 

Grinols action. I would urge you to file your Grinols [application] now — if you have 

not done so.” The superior court believed that Bair’s statements reflected a “tactical 

choice” to seek post-conviction relief rather than relief through a petition for hearing. 

But this finding is flawed, both as a matter of fact and as a matter of law. 

First, as a factual matter, Bair’s letter does not mention the possibility of 

filing a petition for hearing. Indeed, in his affidavit, Bair acknowledged that he likely 

did not advise Mack of his right to file a petition for hearing — and stated that he had no 

– 30 – 2738
 
tactical reason for failing to do so. In short, there is no indication in the current record 

that Bair even considered a petition for hearing. 

The State argues that Mack failed to establish that Bair did not discuss with 

him the possibility of filing a petition for hearing. The State points to the attorney’s lack 

of memory of such discussions as evidence that the discussions may have happened. But 

in doing so, the State mistakenly relies on the “clear and convincing evidence” standard 

of proof. At this stage in the proceedings — where the superior court was determining 

whether Mack had established a prima facie case for relief — the superior court was 

obliged to presume the truth of any well-pleaded assertions of fact, including Bair’s 

assertion that he likely failed to advise Mack of his right to file a petition for hearing and 

had no tactical reason for not doing so.83 Any dispute of material fact must be decided 

by the superior court after holding an evidentiary hearing.84 

Second, as a legal matter, the court’s conclusion that Bair’s decision was 

tactical is incorrect. A petition for hearing and a post-conviction relief application are 

distinct procedural vehicles: a criminal defendant need not forgo one in order to pursue 

the other, and many, if not most, defendants pursue both. Indeed, in many 

circumstances, a defendant must pursue both to preserve all of their claims for federal 

habeas corpus review. 

And as we are about to explain, we conclude that the decision whether to 

file a petition for hearing is not a “tactical” decision for the attorney but rather a decision 

for the defendant. We previously left this question open in Smith v. State.

85 In Smith, we 

83 See LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007). 

84 State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988); see also Alaska R. Crim. 

P. 35.1(g). 

85 Smith v. State, 185 P.3d 767 (Alaska App. 2008). 

– 31 – 2738
 
examined the related question of whether the decision to file a cross-petition for hearing 

is a decision for the attorney or for the defendant.86 In that case, this Court reversed 

Smith’s convictions, and the State filed a petition for hearing in the supreme court 

challenging our decision. The supreme court ultimately reversed our decision and 

affirmed Smith’s convictions. In post-conviction relief proceedings, Smith argued that 

his appellate attorney had provided ineffective assistance of counsel by failing to file a 

cross-petition for hearing of a different issue that he had lost in this Court.87 

We declared that, given the complexity of the decision to file a crosspetition for hearing in a case that a defendant has already won in this Court, the decision 

was a tactical one for Smith’s attorney.88 In particular, we noted that counsel could 

reasonably conclude that urging the supreme court to grant review on an additional issue 

might make it more likely that the supreme court would actually grant discretionary 

review of the case (and affirm the defendant’s convictions), and that the risk was not 

worth taking if the additional issue was not a strong one. And because Smith did not 

show that his attorney made an unreasonable tactical decision, we affirmed the dismissal 

of Smith’s request for post-conviction relief.89 

But the decision to seek the supreme court’s review after an unsuccessful 

appeal in this Court involves a different calculus — and is ultimately a decision for the 

defendant after consultation with counsel. In that situation, the failure to file a petition 

for hearing deprives the defendant of the benefit of an entire proceeding and the 

opportunity to exercise their right to persuade the Alaska Supreme Court to review their 

86 Id. at 768-69. 

87 Id. at 768. 

88 Id. at 769-70. 

89 Id. at 770. 

– 32 – 2738
 
convictions (and preserve any federal claims for later habeas corpus review).90 In 

contrast, in Smith, the State had already initiated a petition for hearing, and the decision 

to cross-petition on a separate issue was therefore more akin to an attorney’s strategic 

decision as to what issues to raise on appeal.91 Moreover, the tactical considerations 

innate to filing a cross-petition for hearing are generally absent when a defendant has lost 

in this Court and is deciding unilaterally whether to pursue further appellate review. 

We therefore conclude that the superior court erred when it found that Bair 

had made a “tactical choice” to pursue a Grinols petition. As a factual matter, Bair 

expressly disclaimed that he had any tactical reason for failing to advise Mack of his 

right to a petition for hearing. And as a legal matter, the decision to pursue one 

procedural vehicle instead of another was not Bair’s decision to make. 

Accordingly, we must consider whether Mack set forth a prima facie case 

that he would have filed a petition for hearing if he had been properly advised. At this 

stage in the proceedings, a court is required to accept all well-pleaded assertions of fact 

in Mack’s application as true and determine whether those assertions of fact, if ultimately 

proven, would entitle the applicant to post-conviction relief.92 In assessing whether an 

applicant has established a prima facie case for relief, a trial court may not engage in 

assessments of credibility or weighing of the evidence.93 

90 See Kargus v. State, 169 P.3d 307, 316 (Kan. 2007); Ex parte Owens, 206 S.W.3d 

670, 674 (Tex. Crim. App. 2006). 

91 Coffman v. State, 172 P.3d 804, 810 (Alaska App. 2007) (“The normal rule under 

Alaska law . . . is that a defendant’s appellate attorney has the responsibility of deciding 

which issues to raise on appeal.”). 

92 See LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007). 

93 Alexie v. State, 402 P.3d 416, 418 (Alaska App. 2017) (“Although a judge may 

(continued...) 

– 33 – 2738
 
Viewing the record in this light, we conclude that Mack set out a prima 

facie case that, had his attorneys informed him of the right to file a petition for hearing, 

he would have done so.94 Mack averred that he unwaveringly wanted to pursue all of his 

legal options to challenge his conviction and that he never told an attorney to forgo any 

legal option. Although Mack stated that he did not remember whether he had discussed 

with Cavanaugh or Bair the option of filing an “appeal” in the Alaska Supreme Court, 

he said that he would have done so had he known he could “have appealed [each] case 

further.” And Bair’s advice to Mack to “file your Grinols [application] now” 

underscores Bair’s knowledge that Mack — who had been convicted of murder and 

received a 99-year sentence — was interested in pursuing further remedies. 

In its order, the court found that, even absent any further explanation by 

Bair, Mack “was presumably aware of the opportunity to appeal,” and the court 

repeatedly put the burden on Mack to show that he told his attorneys of his desire to 

“appeal.” But the basis for the court’s presumption that Mack was aware of “the 

opportunity to appeal” is unclear. And, at this stage of the proceeding, before any 

evidence had been taken, the superior court was required to view all factual allegations 

in Mack’s favor — and credit his statement in his affidavit that, had he known he could 

have pursued further appellate review, he would have done so. 

93 (...continued) 

grant summary judgment and end post-conviction relief litigation short of trial, a judge has 

no authority to grant summary judgment based on the judge’s pretrial assessments of witness 

credibility or pretrial assessments of the comparative strength of the parties’ positions.”). 

94 See David v. State, 372 P.3d 265, 269 (Alaska App. 2016) (recognizing that this 

Court reviews de novo the legal question of whether a post-conviction relief applicant has 

set forth a prima facie case for relief). 

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For these reasons, we conclude that Mack established a prima facie case of 

ineffective assistance of counsel as to Bair. We therefore remand Mack’s case for an 

evidentiary hearing on this claim. 

Our resolution of Mack’s “layered” claim against his first post-conviction 

relief counsel in the superior court and his direct appellate counsel 

With respect to Cavanaugh, we agree with the superior court that Mack set 

out a prima facie case of deficient consultation. But the court dismissed the layered 

claim of ineffective assistance of counsel against Smith (for failing to challenge the 

competency of Cavanaugh), ruling that — although Cavanaugh failed to fulfill his duty 

of consultation — Mack did not show that any of the claims Cavanaugh could have 

raised in a petition for hearing would have been successful. 

As we have already explained, Mack did not need to show that any of the 

claims Cavanaugh could have raised in a petition for hearing would have been 

successful. He needed only to show a reasonable possibility that, but for Cavanaugh’s 

failure to inform him about his right to file a petition for hearing, he would have filed a 

petition for hearing. And as explained previously, Mack established a prima facie case 

on this point. 

However, there is an additional wrinkle in Mack’s case with respect to 

Cavanaugh. Mack did not raise a claim against Cavanaugh until his second postconviction application —i.e., his Grinols application. We must therefore determine how 

to evaluate prejudice in the context of a layered ineffective assistance of counsel claim 

involving the failure to consult regarding a petition for hearing — i.e., a claim that first 

post-conviction relief counsel (here, Smith) incompetently failed to challenge the 

incompetence of an earlier attorney (Cavanaugh) for failing to inform the defendant 

about the right to file a petition for hearing in the supreme court. 

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We conclude that, under theseparticular circumstances,thedefendantmust 

prove three things: 

First, the Grinols application must be deemed timely.95 

Second, the defendant must show that the failure by their first postconviction relief counsel to recognize or pursue the omitted issue constituted 

incompetent representation. It is the defendant’s burden to negate the possibility that the 

attorney chose, for valid tactical reasons, not to raise the issue.96 Clearly relevant to this 

question of competency is whether the defendant knew about the right to file a petition 

for hearing and the possible attack on their direct appellate attorney at the time of the 

defendant’s first post-conviction relief application, but failed to mention it.97 

Finally, where a defendant alleges that their appellate attorney failed to 

appraise them of the right to file a petition for hearing, the defendant must show this 

failure was unreasonable and that the defendant would have filed the petition but for that 

deficient representation. There is no need to establish a reasonable possibility that the 

defendant would have prevailed on the petition. 

Thus, the key question on remand is whether Smith was ineffective for 

failing to raise a claim against Cavanaugh in Mack’s first application for post-conviction 

95 See AS 12.72.025 (setting a one-year statute of limitations for claims of ineffective 

assistance of post-conviction relief counsel). 

96 Grinols v. State, 10 P.3d 600, 619 (Alaska App. 2000), aff’d in part, 74 P.3d 889 

(Alaska 2003). 

97 See id. (“[W]hen a defendant asserts that their post-conviction relief attorney 

inexcusably failed to pursue arguments that the defendant’s trial attorney was incompetent, 

this assertion will be defeated by evidence that the defendant was aware of the possible 

attacks on their trial attorney’s performance when the first post-conviction relief action was 

litigated but failed to mention these potential claims to their post-conviction relief 

attorney.”). 

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relief — i.e., whether Smith unreasonably failed to raise this claim as part of Mack’s 

post-conviction relief action. Because Mack did not have the benefit of this decision, we 

remand this question to the superior court to give Mack an opportunity to amend his 

post-conviction relief application to attempt to establish a prima facie case under this 

standard. 

Conclusion 

Accordingly, we VACATE the superior court’s order dismissing Mack’s 

claim for post-conviction relief and REMAND this case for further proceedings 

consistent with this opinion. 

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