Donald McNeely v. State of Alaska

FOR PUBLICATION
In the Court of Appeals of the State of Alaska
Donald Richard McNeely,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-15097
Order
Date of Order: 9/22/2026
Trial Court Case No. 3KN-26-00607CI
Before: 	Allard, Chief Judge, and Wollenberg and Beach, Judges.
Alaska’s 	Uniform 	Criminal 	Extradition 	Act 	(UCEA), 	codified 	at
AS 12.70, protects the rights of persons subject to extradition warrants. Under
AS 12.70.090, a person arrested on an extradition warrant has the right to test the
legality of the arrest through a petition for writ of habeas corpus.1 The person also has
“the right to demand and procure legal counsel.”2
1 	A petition for writ of habeas corpus in extradition matters is limited to the following
inquiries: “(a) whether the extradition documents on their face are in order; (b) whether the
petitioner has been charged with a crime in the demanding state; (c) whether the petitioner
is the person named in the request for extradition; and (d) whether the petitioner is a
fugitive.” Michigan v. Doran, 439 U.S. 282, 289 (1978).
2 	AS 12.70.090 provides:
A person arrested on a warrant may not be delivered over to the agent who
the executive authority demanding the person has appointed to receive the
person unless the person is first taken immediately before a judge or
magistrate of this state, who shall inform the person of the demand made
for the person’s surrender, and of the crime with which the person is
charged, and that the person has the right to demand and procure legal
counsel. If the prisoner or the prisoner’s counsel states a desire to test the
legality of the arrest, the judge or magistrate shall fix a reasonable time to

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Although public counsel was originally appointed in this case (and to our
knowledge is generally appointed to indigent defendants in fugitive from justice cases
in Alaska), the Alaska appellate courts have never directly addressed the question of
whether the statutory right “to demand and procure legal counsel” under AS 12.70.090
includes the right to court-appointed counsel. The overwhelming majority of states
construing identical language in their uniform criminal extradition acts have held that
the right to “demand and procure legal counsel” includes the right to court-appointed
counsel for indigent defendants.3
be allowed the prisoner within which to apply for a writ of habeas corpus.
When that writ is applied for, notice of the application and of the time and
place of hearing on it shall be given to the prosecuting attorney of the
judicial district in which the arrest is made and in which the accused is in
custody, and to the agent of the demanding state.
3 	See, e.g., People ex rel. Harris v. Ogilvie, 221 N.E.2d 265, 267 (Ill. 1966) (holding
that the UCEA “requires that counsel be appointed to represent indigent persons who do
not have the means to procure counsel for themselves”); Ex parte Turner, 410 S.W.2d 639,
640-41 (Tex. Crim. App. 1967) (holding that the UCEA “requires that counsel be appointed
to represent indigents who do not have the means to procure counsel for themselves”);
Woody v. State, 524 P.2d 1150, 1155-56 (Kan. 1974) (holding that the UCEA requires
appointed counsel for indigent habeas corpus petitioners); Mora v. Dist. Ct. in & for First
Jud. Dist., 494 P.2d 596, 597-98 (Colo. 1972); Denbow v. Dist. Ct. in & for Twenty-First
Jud. Dist., 652 P.2d 1065, 1066 (Colo. 1982) (holding that “indigents have a right to
appointed counsel in habeas corpus proceedings testing the validity of arrest on an
extradition warrant”); Bentzel v. State, 585 So. 2d 1118, 1120 (Fla. App. 1991) (holding
that an indigent prisoner had a statutory right to appointed counsel at an extradition
hearing); Helton v. Tehan, 241 N.E.2d 100, 101-02 (Ohio C.P. 1968); see also Ex parte
Potter, 21 S.W.3d 290, 294-96, 296 n.6 (Tex. Crim. App. 2000) (holding that the right to
counsel in proceedings challenging extradition includes the right to effective assistance of
counsel); but see Sullivan v. State, 181 So.2d 518, 520 (Ala. App. 1965) (representing the
minority view that a defendant in an extradition habeas corpus proceeding has no right to
court-appointed counsel).

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In the current case, Donald Richard McNeely4 was arrested and held on a
fugitive warrant from California for charges related to several burglaries that took place
in San Diego County in February 2026. McNeely is indigent, and the district court
initially appointed the Alaska Public Defender Agency to represent him. However, at
McNeely’s request, the court held a representation hearing at which McNeely waived
his right to counsel and was allowed to proceed pro se.
McNeely subsequently filed a pro se petition for writ of habeas corpus,
challenging his extradition. Soon thereafter, however, McNeely attempted to file a
motion for appointment of counsel, asserting that he was not capable of representing
himself because of physical and mental health ailments. (It appears that this motion was
rejected for filing because it was on the wrong form.)
At the subsequent evidentiary hearing before the superior court on
McNeely’s habeas petition, McNeely again requested court-appointed counsel, and
again asserted that he was in poor physical and mental health and unable to represent
himself. According to McNeely, he had recently been in the hospital, had an MRI a
week ago, his health was declining, and he had service-related traumatic brain injuries.
The superior court responded that there was no right to appointed counsel
in a civil (habeas) case.5 The superior court ruled that the statutory right “to demand
4 	We note that in his pleadings before this Court, the appellant spells his name with
an extra “e” — i.e., “McNeeley.”
5 	We are uncertain from the record before us how the superior court viewed the initial
appointment of counsel that occurred in McNeely’s case. It is possible that the court viewed
this appointment as merely discretionary or as limited to the criminal extradition case,
rather than extending into any extradition-related habeas proceedings. But as AS 12.70.090
makes clear, the two proceedings are directly related to one another, notwithstanding the
separate case number assigned here to the habeas proceedings.

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and procure legal counsel” under AS 12.70.090 was a right to procure retained counsel,
not a right to court-appointed counsel. The court then directed the State to proceed with
its evidence.
A few minutes later, the superior court interrupted the proceedings
because McNeely reported having medical issues. McNeely reported having pain and
taking “some nitro” that was not helping. An ambulance was called for him, and the
hearing was terminated.6
At the next hearing, McNeely appeared telephonically. He stated that he
had just returned from the hospital and that medical had not “cleared” him. McNeely
told the superior court that he was not ready to proceed, and he referred again to his
motion for appointed counsel. The State responded that McNeely was not entitled to
counsel in a habeas case and that, in any case, he had been found competent to represent
himself in his criminal extradition case. The court expressed concern that McNeely’s
requests for counsel were simply delay tactics, and made findings that McNeely had
repeatedly sought to continue or delay the matter in other ways as well.
The superior court subsequently denied McNeely’s request for counsel
and for a continuance, and the State proceeded to present its evidence. While the State
was still presenting its evidence, McNeely hung up. When he was reconnected, the court
asked if it was his intent not to participate in the hearing. McNeely stated that he needed
to see medical and hung up a second time. The superior court directed the State to
proceed with the presentation of its evidence.
6 	In his pleadings on appeal, McNeely asserts that he had a heart attack at the hearing.
The appellate record does not contain any documentation regarding McNeely’s condition.

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After the hearing ended, the superior court took a brief recess and then
returned and put its findings on the record. The superior court found, inter alia, that the
evidence showed that McNeely was the person named in the warrant and that McNeely
had been in California at the time of the alleged offenses.7 The superior court also ruled
that McNeely was not entitled to court-appointed counsel because there was no Alaska
law directly establishing that right. The court found that McNeely had voluntarily
chosen to waive the counsel he had been appointed and that his requests for
reappointment of counsel appeared to be a delay tactic. The court expressed skepticism
about McNeely’s medical issues, noting that McNeely had not provided any outside
verification of these medical issues and that the alleged medical issues also seemed to
be a delay tactic. Based on these findings, the superior court denied McNeely’s petition
for writ of habeas corpus.
McNeely now appeals, raising various claims of error. The dispositive
claim, in our view, is McNeely’s claim that the superior court erred when it failed to
reappoint him counsel. McNeely asserts that persons in extradition habeas proceedings
are entitled to court-appointed counsel and that the superior court erred as a matter of
law when it ruled that there was no such right to court-appointed counsel.
The State argues that we need not reach the question of whether persons
in extradition habeas proceedings are entitled to court-appointed counsel because
McNeely waived his right to counsel and chose to proceed pro se. The State asserts that,
even assuming arguendo that McNeely had a right to court-appointed counsel, the
7 	The court also found, in the alternative, that McNeely had not actually put his
identity into contention. See Evans v. State, 820 P.2d 1098, 1099 (Alaska App. 1991)
(explaining that the accused fugitive bears the burden of establishing that they were not
present in the demanding state at the time of the crime).

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superior court acted within its discretion when it denied McNeely’s request for
reappointment of counsel because the request was untimely (the habeas proceedings
had already begun) and because the request was seemingly motivated by McNeely’s
desire for delay.
The State is correct that ordinarily we would review a trial court’s ruling
on a defendant’s request for reappointment of counsel following a valid waiver of
counsel under the deferential abuse of discretion standard.8 But the abuse of discretion
standard does not apply when the question is whether the trial court applied the correct
law. That is, whether the trial court applied the correct legal standard in the exercise of
its broad discretion is a question of law that we review de novo using our independent
judgment.9
Here, the superior court ruled that there was no statutory right to court-
appointed counsel in extradition habeas proceedings because the court interpreted the
statutory language “the right to demand and procure legal counsel” under AS 12.70.090
as referring only to the right to procure retained counsel. But, as we noted at the
beginning of this order, the overwhelming majority of jurisdictions have construed that
8 	See Henry v. State, 2021 WL 3909975, at *5 (Alaska App. Sep. 1, 2021)
(unpublished) (affirming superior court’s denial of defendant’s request for reappointment
of counsel as within the court’s discretion).
9 	See, e.g., Million v. Hubert, 584 P.3d 476, 484 (Alaska 2026) (“‘Whether a trial
court applied the correct legal rule in exercising [its] discretion is a question of law’ we
review de novo.”); Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017) (“We
review evidentiary rulings for abuse of discretion, although whether the trial court applied
the correct legal standard presents a question of law that we review de novo.”); Adamson
v. Municipality of Anchorage, 333 P.3d 5, 11 (Alaska 2014) (applying de novo review to a
question that is ordinarily reviewed for abuse of discretion when the underlying ruling
required statutory interpretation).

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language, which is derived from the Uniform Criminal Extradition Act, to require court-
appointed counsel for indigent defendants in extradition habeas proceedings. Although
we have not previously addressed this question, it also appears to be the practice of the
courts to appoint the Public Defender Agency in extradition proceedings. Moreover, in
Kostic v. Smedley, the Alaska Supreme Court recognized extradition habeas corpus
proceedings as “criminal in nature” and the defendant in that case was represented by
the Public Defender Agency.10
We now expressly hold, consistent with the holdings of the vast majority
of jurisdictions, that “the right to demand and procure legal counsel” under AS
12.70.090 includes the right to court-appointed counsel for indigent defendants.
Because we cannot know how the superior court may have exercised its discretion if it
had been aware of this governing law, we VACATE the court’s ruling denying
McNeely’s petition for writ of habeas corpus and REMAND this case to the superior
court for appointment of public counsel and further proceedings. We note, however,
that extradition habeas corpus proceedings are intended to be expedited and limited in
scope, and the superior court retains broad discretion to ensure that the proceedings
occur without any further delay.
Entered at the direction of the Court.
10 	Kostic v. Smedley, 522 P.2d 535, 537 (Alaska 1974).

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Clerk of the Appellate Courts
________________________________
Ryan Montgomery-Sythe,
Chief Deputy Clerk
cc: 	Court of Appeals Judges
Judge Joanis
Trial Court Clerk – Kenai
Distribution:
Mail:
McNeeley, Donald
Email:
Walters, Lisa