Pomeroy v. State

Alaska Court of Appeals · Criminal Law

Criminal LawPost-conviction reliefPeremptory challengeWaiverIneffective assistance of counselCivil Rule 42(c)peremptory challengesame action

Facts

Pomeroy pleaded no contest in 2005 to third-degree assault. His first petition for post-conviction relief was dismissed in early 2007, and although he appealed that dismissal, he later waived counsel, declined the opportunity to relitigate the petition with counsel, and ultimately voluntarily dismissed the appeal. He then filed a second petition for post-conviction relief attacking the same underlying conviction, and that case was assigned to Judge Volland, who had presided over the first post-conviction relief proceeding. Pomeroy filed a peremptory challenge to Judge Volland and also asserted ineffective assistance and other claims stemming from the criminal case and first post-conviction proceeding.

Issue

Whether Pomeroy was entitled to peremptorily challenge the judge assigned to his second post-conviction relief petition when that judge had presided over his first post-conviction relief case involving the same conviction. Whether Pomeroy could claim ineffective assistance in the first post-conviction relief proceeding after knowingly waiving counsel and declining relitigation with counsel. Whether he could use a second post-conviction relief petition to raise claims waived by his no contest plea or by voluntarily abandoning his appeal from the first post-conviction relief dismissal.

Rule

For purposes of Alaska Civil Rule 42(c), a second post-conviction relief petition attacking the same underlying criminal conviction is not a new action; it is part of the same action as the original criminal case and prior post-conviction relief litigation, so a party's earlier waiver of a peremptory challenge carries forward. A litigant who knowingly waives counsel and elects self-representation cannot later assert ineffective assistance based on that self-representation. A no contest plea waives all non-jurisdictional errors occurring before the plea, and post-conviction relief may not be used as a substitute for claims that could have been raised on appeal, including an appeal from a first post-conviction relief judgment that was voluntarily dismissed.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Anchorage, Leon Vargas was convicted after trial and later filed a first petition for post-conviction relief. Judge Mara Keene denied that petition after receiving affidavits and argument, and Leon never sought to disqualify her. A year later, Leon filed a second post-conviction petition attacking the same conviction, and the clerk assigned it to Judge Keene under a new civil case number.

If Leon files a timely peremptory challenge to Judge Keene in the second post-conviction case, how should the court rule?

Explanation. The majority held that a second post-conviction relief petition attacking the same underlying conviction is not a new action for Civil Rule 42(c) purposes. It is treated as part of the same action as the criminal case and prior post-conviction litigation, so a party who already litigated before that judge without a peremptory challenge has waived the challenge for the later petition as well. (Derived from Pomeroy v. State (n.d.).)