Pickering v. State, 013019 AKSC, A-12391

Docket Nº:A-12391
Opinion Judge:MANNHEIMER, JUDGE
Party Name:EARL E. PICKERING JR., Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Marilyn J. Kamm, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG, concurring.
Case Date:January 30, 2019
Court:Supreme Court of Alaska
 
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EARL E. PICKERING JR., Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12391

Supreme Court of Alaska

January 30, 2019

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, First Judicial District, Ketchikan, Trial Court No. 1KE-11-439 CI William B. Carey, Judge.

Marilyn J. Kamm, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

MEMORANDUM OPINION

MANNHEIMER, JUDGE

Earl E. Pickering Jr. appeals the superior court's dismissal of his petition for post-conviction relief.

In 2007, Pickering was convicted of murdering his wife (and tampering with evidence after the killing). This Court affirmed Pickering's convictions on direct appeal: Pickering v. State, unpublished, 2011 WL 488904 (Alaska App. 2011).

About three months after this Court affirmed Pickering's convictions, he filed a petition for post-conviction relief in the superior court, asserting that he received ineffective assistance of counsel both from his trial attorney and from the attorney who represented him in his appeal.

The State filed a motion asking the superior court to dismiss Pickering's petition for failure to state a prima facie case for relief. Based on the State's motion, the superior court ultimately notified Pickering's attorney that the court intended to dismiss the petition because of the attorney's failure to offer specific evidentiary support for his claims of ineffective assistance of counsel, and because of the attorney's failure to show how Pickering was prejudiced by the alleged ineffective representation.

In response to the superior court's notice, Pickering's post-conviction relief attorney supplemented the petition for post-conviction relief with a more detailed description of his claims, and by submitting an affidavit from the attorney who represented Pickering on appeal-but in her affidavit, this attorney rebutted Pickering's assertions of ineffectiveness against her.

Two weeks later, the superior court issued a final order dismissing Pickering's petition. As recited in the superior court's order, the court dismissed Pickering's application because it failed to support the claims of ineffective assistance with specific references to the trial record, or in any other manner. The superior court concluded that Pickering's claims of ineffective assistance were, in essence, simply disagreements with his attorneys' tactical decisions - and that Pickering had failed to offer any reason to believe that his attorneys' decisions were so deficient as to fall below the minimum level of competence required of criminal defense attorneys.

The superior court addressed several claims in particular. The first was Pickering's assertion that his trial attorney was incompetent for failing to call an expert witness to support Pickering's assertion that he shot his wife by accident. The superior court explained that Pickering had failed to support this claim with any indication that there was such a witness - i.e., that there was an expert who would testify that the evidence in Pickering's case proved, or was at least reasonably consistent with, Pickering's assertion that the shooting was accidental.

The next was Pickering's assertion that his trial attorney was incompetent for failing to seek a change of venue for Pickering's trial. Again, the superior court noted that Pickering had failed to offer any evidence to support a finding that his trial attorney's failure to seek a change of venue was so deficient as to be incompetent.

The third claim specifically addressed by the superior court was Pickering's assertion that the trial testimony of Ketchikan Police Officer Josh Dossett should have been excluded because it constituted "expert" testimony, and because the prosecutor failed to...

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