MEMORANDUM OPINION
*1 In early 2009, Kenneth Goldsbury and Marvin Long were both living at the Roadside Inn in Wasilla. The two men did not get along with each other, and on the evening of February 2, 2009 they got into a drunken argument at the bar. Goldsbury was asked to leave the bar, and he returned to his room. About a half-hour later, Long went to Goldsbury's room and knocked on the door. Goldsbury responded by firing a shotgun loaded with birdshot through the door. The birdshot penetrated the door and struck Long, inflicting superficial wounds to his torso.
Based on this episode, Goldsbury was indicted for attempted murder. In other words, the grand jury charged that Goldsbury had acted with the intent to kill Long when he fired the shotgun through the door. A jury found Goldsbury guilty of attempted murder, and his conviction was affirmed on appeal by both this Court and the Alaska Supreme Court. See
Goldsbury v. State (I), unpublished, 2012 WL 2203055 (Alaska App. 2012), and
Goldsbury v. State (II),
342 P.3d 834 (Alaska 2015).
After this Court affirmed Goldsbury's conviction, but while Goldsbury's ensuing petition to the Alaska Supreme Court was still pending, Goldsbury filed a petition for post-conviction relief in the superior court. In this petition, and in a later amended petition, Goldsbury asserted that his trial attorney failed to provide him with effective representation in various ways.
The superior court dismissed all but two of Goldsbury's claims because the court concluded that Goldsbury had failed to present a prima facie case to support those claims. The court allowed Goldsbury to litigate his remaining two claims, but the court ultimately rejected those two claims on their merits.
Goldsbury now appeals the superior court's denial of his petition for post-conviction relief. In this appeal, Goldsbury argues that he received ineffective assistance from the attorney who represented him in the post-conviction relief litigation.
Goldsbury concedes that most of his claims for post-conviction relief were not supported by sufficient evidence to survive a motion to dismiss, but Goldsbury asserts that this was true only because his post-conviction relief attorney “was unaware of the basic requirements to plead a prima facie case” — and that, as a result, the attorney failed to competently investigate or present Goldsbury's claims.
Goldsbury further asserts that his attorney's deficiencies were so “obvious and repetitive” that the superior court should have realized at the time that Goldsbury was not receiving effective assistance of counsel. Citing this Court's decisions in Tazruk v. State and Demoski v. State,1 Goldsbury argues that the superior court should not have dismissed any of his post-conviction relief claims for failing to state a prima facie case. Rather, Goldsbury argues, the court should have intervened and taken steps to ensure that Goldsbury received zealous and competent representation, so that Goldsbury's claims could withstand a motion to dismiss and could be evaluated on their factual merits.
*2 For these reasons, Goldsbury asks us to remand all of his dismissed claims to the superior court for further consideration.
But in Amarok v. State,2 this Court clarified that when a defendant wishes to pursue claims that they received ineffective assistance of counsel in post-conviction relief litigation, the defendant should normally litigate those claims in a second petition for post-conviction relief, as allowed by Grinols v. State.3 A remand under Tazruk and Demoski is “limited to those situations where the representation is so facially inadequate as to obviate the need to show prejudice.”4
The record of Goldsbury's post-conviction relief litigation does not demonstrate that he received such a facially inadequate level of representation. While there may have been some questionable aspects to the representation that Goldsbury received in the post-conviction relief proceedings, the record shows that Goldsbury's attorney actively investigated several of his claims, and two of Goldsbury's claims survived the State's motion to dismiss and were litigated on their merits.
We therefore reject Goldsbury's call for a remand under Tazruk and Demoski. Rather, we conclude that it was not error for the superior court to dismiss the majority of Goldsbury's claims on the ground that they were not supported by a prima facie case.
We do, however, wish to specially address one of Goldsbury's dismissed claims for post-conviction relief, because we conclude that this claim is res judicata.
As part of his petition for post-conviction relief, Goldsbury claimed that the attorney who represented him at his underlying criminal trial was ineffective because the attorney failed to object when the prosecutor, during final argument, improperly commented on the fact that Goldsbury did not take the stand at trial.
(The prosecutor told the jurors: “The fact remains [that] the only people who know what happened that night are [the victim] and the defendant. And [the victim] testified — [he] came in here and faced all you people, and [he] told you what happened in this case.”)
But to establish a claim of ineffective assistance of counsel, it is not enough for a defendant to show that their attorney failed to meet the required standard of performance. A defendant must also show that they suffered prejudice as a result of their attorney's substandard performance.5 And in Goldsbury's case, the Alaska Supreme Court has already ruled that Goldsbury was not prejudiced by his trial attorney's failure to object to the prosecutor's argument — that his trial attorney's failure to object was harmless beyond a reasonable doubt. Goldsbury II, 342 P.3d at 838.
In Goldsbury II, the supreme court characterized the prosecutor's improper comment as “brief, isolated, and indirect”, and the supreme court noted that the trial judge gave curative instructions to the jury both before and after the prosecutor's comment. Ibid.
*3 (Immediately before the closing arguments in Goldsbury's case, the trial judge told the jurors that “a defendant has the absolute right not to testify, and you must not draw any inference against the defendant for not testifying.” Id. at 839. And immediately after the closing arguments, the trial judge gave the jury an even more explicit instruction on this topic: “A defendant has an absolute right not to testify. The fact that the defendant did not testify cannot be considered by you in any way. Do not speculate about why the defendant did not testify. Do not even discuss it in your deliberations.” Ibid.)
The supreme court concluded that, under these circumstances, even if Goldsbury's attorney had objected to the prosecutor's comment, it would have been sufficient for the trial judge to give these same curative instructions to the jury. Ibid.
The supreme court's holding in Goldsbury II is equivalent to saying that, even if Goldsbury's trial attorney acted incompetently when he failed to object to the prosecutor's improper comment, Goldsbury cannot show that he was prejudiced by his trial attorney's incompetent failure to object. Therefore, with respect to this claim, we affirm the superior court's ruling on this additional ground.
We now turn to Goldsbury's two remaining claims — the two claims that survived the State's motion to dismiss and were ultimately decided on their merits. Both of these claims involve the fact that Goldsbury did not take the stand at his underlying criminal trial.
Initially, Goldsbury asserted that his trial attorney had not just given him advice on whether to take the stand, but had actually ordered him not to take the stand — thus usurping Goldsbury's right to decide whether to testify on his own behalf. The superior court rejected this claim on its merits, and Goldsbury does not challenge the superior court's decision.
However, Goldsbury also raised an alternative but related claim: Goldsbury asserted that his trial attorney advised him not to take the stand, and that this advice was incompetent because his attorney failed to adequately explain the consequences of Goldsbury's not taking the stand.
Later, after an attorney was assigned to represent Goldsbury in the post-conviction relief litigation, the basis of this claim shifted. The claim, as actually litigated, was that Goldsbury's trial attorney acted incompetently when he advised Goldsbury not to take the stand at trial because any competent attorney would have known that Goldsbury's defense of self-defense was unwinnable unless Goldsbury took the stand.
In support of this contention, Goldsbury's post-conviction relief attorney presented the testimony of Michael Horowitz, an experienced defense attorney.
Horowitz testified that, in his experience, “juries want to hear what the defendant has to say”, and that juries find it difficult to adhere to a judge's admonition not to draw any adverse inferences from a defendant's decision not to take the stand. Thus, Horowitz asserted, when a defendant is charged with intending to kill someone, “if the defendant doesn't get up there and say, ‘No, ... I did not mean to kill this person’, ... then the jury's going to wonder why the defendant didn't get up there and deny the claim”.
Horowitz conceded that he did not know what version of events Goldsbury would have testified to if he had taken the stand. And Horowitz admitted that many defendants do not respond well to cross-examination — which, Horowitz said, was the reason many defense attorneys adopt the default position of advising their clients not to take the stand. Horowitz also conceded that his practice of normally encouraging his clients to take the stand was probably “contrary to ... popular wisdom”.
*4 But Horowitz told the superior court that, given the facts of Goldsbury's case, “there wasn't much of a defense without [Goldsbury's] testimony” — that “[Goldsbury's] chance of winning the case was ... pretty non-existent without [his] testimony”, and that taking the stand “would have been [Goldsbury's] only choice”, given his defense of self-defense. Based on this assessment, Horowitz asserted that no competent defense attorney would have presented a defense of self-defense in Goldsbury's case unless the attorney knew that Goldsbury would personally testify in support of that defense — and that if Goldsbury's trial attorney advised Goldsbury not to take the stand, then Goldsbury received ineffective assistance of counsel.
Despite Horowitz's testimony, the superior court concluded that even if Goldsbury's defense attorney advised him not to take the stand at trial, Goldsbury had failed to prove that this advice was incompetent.
In its ruling, the court noted that, before Goldsbury's trial started, the State asked the trial court to allow the State to introduce evidence that Goldsbury had previously shot another person through a boat porthole during a dispute. The trial court denied the State's request to introduce this evidence, but the court left open the possibility that it would reconsider the State's request if the evidence presented at trial increased the probative value of this other-bad-act evidence.
Thus, if Goldsbury had elected to testify at trial, there was a risk that his testimony would open the door to the admission of the State's evidence about Goldsbury's violent behavior during the prior incident. This risk, the post-conviction relief court concluded, would have given Goldsbury's trial attorney a sound tactical reason for advising Goldsbury not to testify.
In addition, we note that the record of Goldsbury's underlying criminal trial (a trial at which the post-conviction relief judge presided) tends to rebut Horowitz's assertion that there was no competent way for Goldsbury's trial attorney to present a defense unless Goldsbury testified.
In his summation to the jury, Goldsbury's defense attorney pointed to two aspects of the evidence that tended to undercut the State's assertion that Goldsbury acted with an intent to kill when he fired his shotgun into the door.
The defense attorney noted that, shortly after the shooting, Goldsbury agreed to be interviewed by a state trooper without an attorney present. In that interview, Goldsbury told the trooper that he had fired his shotgun into the door because Long was beating on the door and threatening to kill Goldsbury. Goldsbury also told the trooper that his purpose in firing the weapon was only to deter Long — to get him to stop.
Goldsbury's attorney also reminded the jury that Goldsbury easily could have used ammunition of a much more deadly type when he fired the shotgun at the door. According to the evidence at Goldsbury's trial, when the state troopers examined Goldsbury's pump-action shotgun after the incident, they found that the shotgun had been loaded with two different types of ammunition when Goldsbury picked it up: A shell containing birdshot had been loaded and racked for immediate firing, but two higher-power shells containing solid metal slugs were in the chamber behind the birdshot shell. The state trooper who examined the shotgun testified that these higher-power shells loaded with metal slugs were “something you would use for ... bear defense”, and that Goldsbury could have fired one of these more deadly shells simply by pumping and racking his shotgun (that is, by ejecting the birdshot shell and readying one of the metal slug shells).
Given this record, we uphold the superior court's ruling that Goldsbury failed to prove that his trial attorney acted incompetently if he advised Goldsbury not to take the stand.
*5 The judgement of the superior court is AFFIRMED.