Brett Talmadge v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

BRETT TALMADGE,
Court of Appeals No. A-14118
Appellant, Trial Court No. 3PA-l l-01885 CI

v.
OPINION
STATE OF ALASKA,

Appellee. No. 2819 — October 24, 2025

Appeal from the Superior Court, Third Judicial District,
Palmer, Kristen C. Stohler, Judge.

Appearances: Renee McFarland, Assistant Public Defender,
and Terrence Haas, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.

Judge HARBISON, writing for the Court.
Judge HARBISON, with whom Judge TERRELL joins,
concurring.
Following a jury trial, Brett Talmadge was convicted of two counts of
second-degree sexual abuse of a minor.1 After this Court affirmed Talmadge’s
convictions on appeal, Talmadge filed an amended application for post-conviction
relief alleging that his trial attorneys provided ineffective assistance of counsel.2 The
superior court granted the State’s motion to dismiss, finding that Talmadge failed to
state a prima facie case for relief. Talmadge now appeals the dismissal of his
application, arguing that he did in fact set forth a prima facie case with respect to three
ineffective assistance of counsel claims — that his attorney (1) did not adequately
investigate his claim that he was not present in Alaska at the time of the sexual abuse;
(2) failed to advise him on his right to self-representation; and (3) failed to prepare him
for his sentencing allocution.
For the reasons explained in this opinion, we conclude that Talmadge
failed to establish a prima facie case for relief, and we affirm the superior court’s order.

Background facts and proceedings
We described the facts of this case in our unpublished memorandum
opinion affirming Talmadge’s convictions:
In the fall of 2007, when C.B. was fifteen years old,
she and her family were friends with Talmadge and his
family. C.B. often babysat Talmadge’s two boys at his home
in Wasilla.
C.B. competed in a rodeo event at the Alaska State
Fair in late August or early September. After the state fair,
C.B. and her mother and brother traveled to Chugwater,
Wyoming with Talmadge and his family, who were moving

1
AS 11.41.436(a)(1). The State charged and the jury found Talmadge guilty of three
counts of second-degree sexual abuse of a minor and one count of attempted second-degree
sexual abuse of a minor. However, at sentencing, the court merged Counts II through IV.
See Talmadge v. State, 2013 WL 784884, at *2 (Alaska App. Feb. 27, 2013) (unpublished).
2
See Talmadge, 2013 WL 784884, at *5 (affirming convictions on direct appeal).

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there. C.B. and her family then continued to Riverton,
Wyoming to visit C.B.’s mother’s best friend. While in
Riverton, C.B. told her mother’s friend that before she left
Alaska, Talmadge had had sex with her.
At trial, C.B. testified that there were two incidents
when Talmadge had sex with her, both of which occurred
between the state fair and the trip south. The first incident
was at Talmadge’s house in Wasilla after a barbecue.
C.B. testified that, prior to the first incident, she spent
the morning helping Talmadge and his wife pack up and load
things in a trailer for the move. About the time it turned dark,
they took a break and had a barbecue. The people who
bought the Talmadges’ Wasilla house had hired two workers
to put in a foundation for a trailer, and those workers were
also at the barbecue.
C.B. testified that she drank too much alcohol and
passed out on a lawn chair. The next morning C.B. woke up
in Talmadge’s house. Her vagina was sore, and she was
wearing a t-shirt and shorts that belonged to Talmadge.
C.B. testified that she confronted Talmadge that
morning about what had happened at the barbecue. And over
objection, the trial judge also allowed C.B. to testify that she
asked Talmadge if what the workers said was true — that he
had carried her inside the previous night. C.B. testified that
Talmadge told her not to worry about it.
The second incident of sexual abuse occurred about
two days later, when C.B. returned to Talmadge’s house to
help pack. Talmadge asked C.B. to go with him to his travel
trailer. Once they were inside, Talmadge locked the door.
Talmadge said he wanted to have sex with her. C.B. told him
no, but Talmadge told her that if she did not agree to have
sex, he would call her parents and tell them that C.B. was
drinking and smoking. Talmadge undressed C.B. and
subjected her to digital, vaginal, and attempted anal
intercourse.

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Talmadge later admitted having sex with C.B. in
telephone calls with C.B.’s mother and her friend.[3]
The State charged Talmadge with three counts of second-degree sexual
abuse of a minor and one count of attempted second-degree sexual abuse of a minor.4
The Alaska Public Defender Agency was initially appointed to represent Talmadge.
Soon after this appointment, Talmadge asked the court to permit him to act as the Public
Defender Agency’s co-counsel, and the court held a representation hearing.
At the representation hearing, Talmadge confirmed his request to act as
co-counsel, but told the court that he was not seeking to discharge his court-appointed
attorney.5 Despite Talmadge’s assertion that he was seeking to act as co-counsel, the
court advised Talmadge on the risks of proceeding pro se.
The court did not immediately rule on Talmadge’s request to serve as co-
counsel. Instead, it instructed the parties to file memoranda on the issue. However, the
court ruled that in the meantime, Talmadge could file his own motions through the
Public Defender Agency. The State and the Public Defender Agency both opposed
Talmadge’s motion to act as co-counsel, and the court then held another representation
hearing on the matter.
At this second hearing, Talmadge expressed concerns about the
representation he was receiving from his court-appointed attorney. He explained that
he wanted to serve as co-counsel so that he could file his own motions and protect his
constitutional rights.
The court once again ruled that Talmadge could file his own motions if he
submitted them through his attorney, and it instructed the Public Defender Agency to

3
Id. at *1-2.
4
AS 11.41.436(a)(l) and AS 11.41.436(a)(l) & AS 11.31.100(a), respectively.
5
At this representation hearing, Talmadge’s assigned attorney noted that the Public
Defender Agency had a policy prohibiting defendants as co-counsel.

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file Talmadge’s motions regardless of their merit. The court called this “a form of
hybrid counsel,” and it emphasized that Talmadge would continue to be represented by
the Public Defender Agency at trial. The court instructed Talmadge to raise his concerns
about his attorney’s representation with the attorney’s supervisor.
Over time, Talmadge’s relationship with his first attorney worsened. A
new assistant public defender was then assigned to represent Talmadge, and
Talmadge’s case proceeded to trial.
At trial, the State alleged that Talmadge sexually abused C.B. “on or about
September 2007” and “at or near Wasilla, Alaska.” The State elicited testimony from
C.B., C.B.’s mother, and a family friend that Talmadge sexually abused C.B. in Alaska,
and that this abuse occurred in approximately late August or early September 2007. The
State also played the recorded telephone calls during which Talmadge admitted to
having sex with C.B.
In response, Talmadge did not deny that he had sex with C.B. Instead,
Talmadge’s defense was that the State failed to prove that the sexual acts took place “at
or near Wasilla” as alleged. According to Talmadge, he moved to Wyoming in the fall
of 2007, and the sexual acts took place in Wyoming, not Alaska.
The evidence supporting the State’s timeline was strong. C.B. and her
mother both testified that in early September 2007, their family and Talmadge’s family
drove together from Alaska to Wyoming. C.B. testified that Talmadge sexually abused
her twice in the days shortly before the two families left Alaska. According to C.B., the
first incident of sexual abuse took place after she went to Talmadge’s house in Wasilla
to help him pack for his upcoming move to Wyoming. C.B. testified that in the evening
the Talmadges had a barbeque, which she attended, along with two other people who
were working on the property. C.B. also testified that two days separated this incident
from a second incident of sexual abuse that took place in Talmadge’s travel trailer
(which was located just outside of his house). According to C.B., this second incident
took place when she returned to the house to again help Talmadge pack. C.B. testified

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that the second incident of sexual abuse took place about a day or two before she and
her family, and Talmadge and his family, left Alaska in September 2007.
C.B.’s mother corroborated C.B.’s timeline of events. She testified that
the two families left Alaska at the end of the first week of September in 2007, after C.B.
had participated in an event at the state fair that took place on August 25. C.B.’s mother
also explained that although the Talmadges had sold their house in early August, they
had permission from the buyers to continue living in the house until they left the state
in early September.
According to C.B. and her mother, the Talmadges were leaving Alaska
permanently to move to Wyoming, while C.B.’s family was leaving Alaska only for
several months so that C.B. could compete in the rodeo finals in Nevada. C.B. and her
mother testified that the families drove together out of Alaska, with C.B.’s mother
driving a vehicle that pulled a horse trailer and Talmadge driving a vehicle that pulled
a trailer containing the Talmadges’ belongings. The two families drove in tandem, and
they camped together each night. They eventually reached the Talmadges’ new house
in Chugwater, Wyoming, and after a few days, C.B.’s family continued their travels to
the rodeo finals.
During a conversation Talmadge later had with C.B.’s mother, Talmadge
admitted that he had fallen in love with C.B. and that he had sex with her several times
at his home. This conversation was recorded and the State introduced a copy of the
recording during Talmadge’s trial.
As we have explained, Talmadge’s defense at trial was that the sexual
abuse of C.B. had taken place at his home in Wyoming and not at his home in Alaska.
As support for this defense, Talmadge’s defense attorney elicited testimony that C.B.
had stated during a police interview that the sexual abuse took place in October 2007.
The attorney also elicited testimony from an employee of the Matanuska Electric
Association, who testified that Talmadge’s electric account for his home in Wasilla was

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closed on August 9, 2007. However, the witness did not know whether someone else,
such as the new owner, had taken over the account for the home.
The jury found Talmadge guilty of all charges: three counts of second-
degree sexual abuse of a minor and one count of attempted second-degree sexual abuse
of a minor.6 The court scheduled the sentencing hearing for a date three months later.
At Talmadge’s sentencing hearing, he gave an allocution. In its
subsequent sentencing remarks, the superior court referenced Talmadge’s allocution,
finding that the allocution corroborated information in the presentence report that
Talmadge had an “unrealistic sense of entitlement” and was singularly focused on
“what he wants rather than on what the victim wants.” The court also expressed that
Talmadge’s professed remorse “r[ang] somewhat hollow” in light of his allocution. The
court sentenced Talmadge to a composite term of 23 years with 12 years suspended
(11 years to serve).7 Talmadge filed both a merit appeal and a sentence appeal, and this
Court confirmed his convictions in one opinion and his composite sentence in a separate
opinion.8
Talmadge filed an application for post-conviction relief. After an attorney
was appointed to represent him, the attorney filed an amended application, alleging
several claims of ineffective assistance of counsel. Three of these claims are relevant to
this appeal. First, Talmadge alleged that his trial attorneys ineffectively investigated his
jurisdiction defense because they did not interview certain witnesses and did not obtain
exculpatory documents prior to trial. Second, Talmadge alleged that his trial attorneys
failed to consult with him about his right to self-representation. Third, Talmadge alleged

6
As noted previously, Counts II through IV merged.
7
Talmadge v. State, 2014 WL 5305987, at *1 (Alaska App. Oct. 15, 2014)
(unpublished).
8
See Talmadge, 2013 WL 784884, at *5 (affirming convictions on direct appeal);
Talmadge, 2014 WL 5305987, at *2 (affirming sentence).

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that his attorney was unprepared for sentencing and did not assist Talmadge in preparing
for his allocution.
The State moved to dismiss the application for failing to state a prima
facie claim for relief, and the superior court granted the State’s motion. This appeal
followed.

The superior court did not err by dismissing Talmadge’s claim that his
counsel ineffectively advised him regarding his right to self-
representation
In Risher v. State, the Alaska Supreme Court adopted a two-pronged test
for evaluating ineffective assistance of counsel claims.9 Under Risher, in order to
establish a prima facie claim of ineffective assistance of counsel, an application must
allege facts that, if proven, show (1) that the attorney’s performance fell below the
standard of minimal competence expected of an attorney experienced in criminal law
and (2) that there is a reasonable possibility that, but for the attorney’s incompetent
performance, the outcome of the proceedings would have been different. 10 Thus,
Talmadge’s application needed to show both that his attorney’s performance fell below
the standard of competence and that there was a reasonable possibility that he suffered
prejudice — i.e., that the attorney’s deficient performance contributed to the outcome.
Talmadge’s first claim is that the superior court erroneously dismissed his
argument that his trial attorney ineffectively advised him regarding his right to self-
representation. Talmadge asserts that his application made out a prima facie claim of
ineffective assistance because his attorney did not advise him about his right to
represent himself and did not bring the issue before the trial court. He also asserts that

9
Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
10
State v. Carlson, 440 P.3d 364, 389 (Alaska App. 2019) (citing Risher, 523 P.2d at
424-25).

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this failure was prejudicial because he “would have exercised his right [to represent
himself] had [his lawyer] consulted with him.”
Although the superior court was obliged to presume that Talmadge’s well-
pleaded assertions of fact were true, it was entitled to disregard factual assertions if the
existing record or the court’s own judicial notice demonstrated that the assertions were
patently false.11 Here, the trial record, which was incorporated into Talmadge’s
application, belies Talmadge’s assertions. The record shows that Talmadge was aware
of his right to self-representation but never sought to exercise that right.
During the first representation hearing, Talmadge confirmed that he was
not asking to proceed without an attorney but rather was seeking to be appointed as co-
counsel.12 Despite Talmadge’s declarations that he was seeking to act as co-counsel, the
court nonetheless read him an advisement on proceeding pro se. This advisement
explained, in detail, the benefits of having an attorney and the risks of proceeding
without counsel. The court also explained that, in lieu of proceeding without counsel,
Talmadge could proceed with “hybrid counsel,” whereby he would continue to be
represented by an attorney but would also be able to file his own motions. During the
hearing, Talmadge confirmed that he wanted to have the assistance of an attorney.
The parties then filed memoranda regarding Talmadge’s request to serve
as co-counsel. In his filings, Talmadge again clarified that he did not want to represent
himself, and he argued that the State’s memorandum on this issue was faulty because it
was “geared to a totally pro-se case” which was inapposite because he was merely
“asking for co-counsel.” The court then held a second representation hearing, and
during that hearing Talmadge again stated that he was not seeking to proceed without
the assistance of counsel, but that he wanted to serve as co-counsel so that he could file

11
LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
12
In the first representation hearing, Talmadge told the court, “I am requesting that I
have all the rights to co-counsel with assistance of an attorney.”

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his own motions and protect his constitutional rights.13 As we have explained, the court
ultimately entered an order that allowed Talmadge to file his motions.
The record thus establishes that Talmadge was aware of and advised about
his right to self-representation, but he chose not to pursue this right. His attorney acted
competently by bringing the issue of Talmadge’s motion for co-counsel to the court’s
attention, and the attorney’s alleged failure to provide Talmadge with additional
information about self-representation was not incompetent, given that Talmadge had
already been informed of and expressly chosen not to exercise that right.

The superior court did not err by dismissing Talmadge’s ineffective
investigation claim
Talmadge’s second claim on appeal is that the superior court erred by
dismissing his ineffective investigation claim.
As we have explained, Talmadge’s application alleged that his trial
attorney was ineffective because the attorney did not interview potential witnesses or
gather documentation that would have shown that Talmadge was not in Alaska when
the sexual abuse occurred. The State moved to dismiss this claim, arguing that
Talmadge’s pleading had “fail[ed] to form a prima facie case for relief” because he had
not provided affidavits, records, or other evidence supporting his allegations, as is
required by Alaska Criminal Rule 35.1(d). The superior court agreed and dismissed
Talmadge’s claim.

13
In the second representation hearing, Talmadge told the court, “It’s not that I don’t
request to have representation. I want to have co-counsel, which is a little bit different than
not having representation itself.”

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We have reviewed Talmadge’s application and conclude that he did not
plead facts sufficient to establish that his attorney’s pretrial investigation, even if
incompetent, resulted in prejudice.14
As we have explained, Talmadge’s defense at trial was that his sexual
abuse of C.B. took place in Wyoming, not Alaska. As support for this defense,
Talmadge’s defense attorney impeached both C.B. and her mother with their prior
statements to police that the sexual abuse had taken place sometime around
September 18 (i.e., dates that were undisputedly after Talmadge relocated to
Wyoming). The defense attorney also presented evidence that Talmadge’s electric
account for his home in Wasilla was closed on August 9, 2007, and he argued that this
proved Talmadge had moved out by that date. The jury nevertheless found Talmadge
guilty of all charges. In his application for post-conviction relief, Talmadge asserted
that there was additional evidence that he claims would support his assertion that he
was in Wyoming when the sexual abuse occurred. However, we have reviewed this
evidence, and we conclude that none of the evidence identified by Talmadge would
have cast doubt on the State’s strong evidence that he was in Alaska.
Talmadge’s application provided the names of several witnesses and listed
many documents, including utility bills, bank statements, veterinary records, plane
tickets, and gas purchases. According to Talmadge, this evidence was “clearly relevant
to challenging jurisdiction, and had obvious value to an alibi defense or as impeachment
evidence.” But, even reviewing this evidence in the light most favorable to the
application, none of it actually contradicts C.B. or her mother’s testimony about when

14
“The question of whether a petition for post-conviction relief and its supporting
documents adequately set forth a prima facie case for relief is a question of law.” David v.
State, 372 P.3d 265, 269 (Alaska App. 2016). This Court “reviews the superior court’s
decision on this question de novo — i.e., without deference to the superior court’s
conclusion.” Id. To establish prejudice, the applicant must “make a specific factual
showing that counsel’s incompetence had some actual, adverse impact on the case.”
State v. Jones, 759 P.2d 558, 573 (Alaska App. 1988).

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the sexual abuse occurred. Instead, the evidence is largely cumulative of what was
presented at trial.15
For example, Talmadge claims that his attorney should have called Dan
Morrison, the person who bought Talmadge’s house, to testify that the sale of the home
closed on July 17, 2007. But as we have explained, the jury was aware that Talmadge
sold his home prior to the sexual abuse. Talmadge’s trial attorney called a utility
employee witness to testify that the utilities for Talmadge’s residence were not in his
name at the time of the abuse. And both C.B. and her mother testified that Talmadge
sold his home — but was still living on the property — prior to the sexual abuse. As a
result, Morrison’s testimony would largely be cumulative to the other evidence
establishing that Talmadge sold his home prior to the sexual abuse. And even if
Morrison testified that he took possession of the property prior to the sexual abuse, this
is not necessarily inconsistent with C.B.’s testimony. Morrison’s possession of the
property would not mean that Talmadge lost access to the property or the trailer adjacent
to the property where the sexual abuse occurred. Indeed, the documents attached to
Talmadge’s first application for post-conviction relief indicate that Morrison would
testify that Talmadge stayed in the home for at least a month after it was sold and that
Morrison was not sure of the exact date that Talmadge vacated the home. Likewise,
Morrison’s possession of the property does not itself establish when Talmadge left the
state — he could have resided at another person’s house or camped as he did during his
road trip to Wyoming. Especially in light of the documents attached to Talmadge’s
application, the absence of Morrison’s testimony was not prejudicial.
Similarly, while the utility bills Talmadge submitted with his application
established that Matanuska Electric Association disconnected Talmadge’s electrical
account for his Wasilla home in early August 2007, this information was largely
cumulative of the testimony provided by the Matanuska Electric Association employee

15
Jones, 759 P.2d at 573.

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at trial and also not actually inconsistent with Talmadge remaining in Alaska until after
he sexually abused C.B.
Plane tickets showing Talmadge left Alaska at various times likewise
would not have helped establish when Talmadge moved from Alaska to Wyoming, nor
would they have helped establish that the abuse happened when Talmadge was outside
of Alaska. This is particularly true given the uncontroverted evidence at trial that
Talmadge and his family relocated to Wyoming by driving there.
Talmadge’s application also claimed that Talmadge’s ex-wife and two
other witnesses could have testified to additional minor details about the timing of
Talmadge’s move to Wyoming that would contradict C.B. and her mother’s timeline of
events. But the application contained contradictory information about what these
witnesses would testify to, and C.B. and her mother’s timeline of events had already
been subject to rigorous challenges by Talmadge’s trial attorney. We therefore
ultimately conclude that there was no reasonable possibility that the outcome of the trial
would have been different if the jury had heard this testimony.
Additionally, Talmadge’s bank statements, which he claims should have
been presented at trial, actually establish the opposite of what Talmadge sought to
prove. The statements indicate that Talmadge’s bank card was being used in Alaska as
late as September 7 and then show a series of purchases through Canada and then
multiple states in the lower 48, including Wyoming. Contrary to Talmadge’s claims,
this corroborates the timeline provided by C.B. and her mother.16
For these reasons, we conclude that, even assuming the truth of
Talmadge’s claim that his attorney failed to obtain this additional evidence and to
introduce it at trial, the evidence would not have meaningfully furthered Talmadge’s

16
See LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007) (allowing courts to
disregard factual assertions in applications for post-conviction relief if the existing record
or the court’s own judicial notice demonstrated that the assertions were patently false).

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defense that the sexual abuse did not take place in Alaska, nor his jurisdictional attack
on trial in Alaska. The application therefore failed to set out specific facts showing that
Talmadge was prejudiced by his attorney’s omissions.

The superior court did not err by dismissing Talmadge’s claim that his
attorney ineffectively prepared him for allocution at sentencing
Talmadge’s final claim is that his attorney provided ineffective assistance
of counsel by failing to prepare him to give an allocution at sentencing.
Following Talmadge’s conviction, the State filed a sentencing
memorandum, and the Department of Corrections prepared a presentence report. A
probation officer interviewed Talmadge in the presence of his attorney and included
details from that interview in the report. The presentence report stated that Talmadge
had also been informed of his right to provide a written statement as well as his right to
give an allocution at sentencing.
The presentence report included statements from Talmadge’s biological
father and stepfather that discussed Talmadge’s sense of self-entitlement. Talmadge’s
biological father stated that Talmadge “always played the victim and felt that everyone
owed him something and he owed nothing to anyone else.” Talmadge’s father further
stated that Talmadge has a history of inappropriate relationships with young girls, and
he expressed concern that Talmadge’s behavior would likely continue. Talmadge’s
stepfather echoed these concerns and also stated that Talmadge “never tells the whole
truth and only tells what will benefit him in the end.”
The prosecutor referred to these statements in the sentencing
memorandum that she filed prior to sentencing. The prosecutor noted that Talmadge
had demonstrated a similar sense of self-entitlement in the recorded telephone calls,
where he talked primarily about himself rather than the victim. At the sentencing
hearing, the prosecutor asked the superior court to impose a sentence of 14 years to
serve with additional time suspended and 10 years of probation.

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Talmadge chose to address the court at the time of sentencing. In his
allocution, Talmadge expressed remorse. However, he also accused a witness of perjury
and continued to dispute whether he was in Alaska at the time of the sexual abuse. He
characterized his conduct as just “a mistake.” Talmadge emphasized that “throwing
[him] behind bars for 14 years [was] just going to make [him] angry and . . . [was] not
going to rehabilitate anything.”
In imposing the sentence, the court emphasized the seriousness of the
second incident, finding that Talmadge had used threats and duress to take advantage
of C.B.’s youth, vulnerability, and lack of sophistication in order to further his own
sexual gratification. The court also found that Talmadge’s prospects for rehabilitation
were diminished by his “unrealistic sense of entitlement” and that his professed remorse
“r[ang] somewhat hollow,” given “his overall statements upon allocution.” The court
noted that Talmadge’s allocution “corroborate[d]” the information in the presentence
report, which likewise emphasized Talmadge’s feelings of entitlement.
The superior court merged three of the counts and imposed sentences
within the presumptive range: 10 years with 5 years suspended for Count I and 15 years
with 7 years suspended for merged counts II-IV.17 The court ran these sentences
partially consecutively, ultimately imposing a composite sentence of 11 years to serve.
Talmadge appealed this sentence as excessive, and we affirmed the
sentence in an unpublished memorandum opinion, determining that the sentence was
not clearly mistaken.18
As we have explained, Talmadge’s application for post-conviction relief
asserted that his attorney was ineffective because the attorney had “failed entirely” to
prepare him for allocution. Talmadge’s affidavit alleged that the “lack of prep cost

17
Talmadge v. State, 2014 WL 5305987, at *1 (Alaska App. Oct. 15, 2014)
(unpublished).
18
Id. at *1-2.

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[him] years” because the judge took certain comments in his allocution as “not showing
remorse” and because “the judge attacked [him] for stating that they did not have
jurisdiction over the crime.” Notably, Talmadge did not provide any details about what
he would have said if his attorney had properly prepared him for his allocution. Nor did
he provide any specifics about what his attorney should have done that he failed to do.
Talmadge’s attorney’s affidavit did not directly respond to the allegation that the
attorney had “failed entirely” to prepare Talmadge for his allocution. However,
Talmadge’s attorney did acknowledge in his affidavit that the sentencing “didn’t go
well.”
The superior court dismissed this claim of ineffective assistance of
counsel for failure to state a prima facie case, ruling that Talmadge had failed to show
that he would have received a different sentence if he had given a better-prepared
allocution.
On appeal, Talmadge renews his claim that his lawyer was incompetent
for not discussing his allocution with him prior to the hearing. He asserts that the
prejudice flowing from this incompetence is apparent because the superior court
referenced the allocution during its sentencing remarks, when it found that Talmadge
had poor prospects for rehabilitation.
We agree with Talmadge that an attorney’s complete failure to prepare a
defendant for allocution may constitute deficient performance.19 However, we also
agree with the superior court that Talmadge’s pleadings have failed to demonstrate a
reasonable possibility that review and input from counsel would have led to a different

19
See Harden v. State, 180 A.3d 1037, 1040 (Del. 2018) (“The right to representation
includes having a lawyer who makes a reasonable effort to prepare you for allocution,
decides if you can do so effectively, and helps you put your best foot forward if you decide
you wish to speak.”); State v. Dunlap, 313 P.3d 1, 43 (Idaho 2013) (stating that an
attorney’s failure to help prepare their client for an allocution statement could constitute
deficient performance); ABA Standards for Criminal Justice: Defense Function § 4-8.3(f)
(4th ed. 2017).

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sentencing outcome.20 As discussed, in its sentencing remarks, the court expressed
concern about the seriousness of Talmadge’s conduct. And while the court commented
on Talmadge’s allocution when discussing Talmadge’s prospects for rehabilitation, the
court noted that similar information could be found in the presentence report.
We accordingly conclude that Talmadge’s application for post-conviction
relief failed to demonstrate a reasonable possibility that his attorney’s alleged failure to
prepare him for his allocution had an impact on the sentence he received. Accordingly,
the superior court did not err in summarily dismissing this claim.

Conclusion
The judgment of the superior court is AFFIRMED.

20
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that if the applicant
established incompetence, “all that is required additionally is to create a reasonable doubt
that the incompetence contributed to the outcome”).

– 17 – 2819
Judge HARBISON, with whom Judge TERRELL joins, concurring.

I write separately to express my view that one of the superior court’s
reasons for dismissing Talmadge’s ineffective investigation claim — that Talmadge’s
application did not comply with the requirements of Criminal Rule 35.1(d) — was
improper. Because the parties have briefed this issue, I would take this opportunity to
clarify that, if the requirements of Rule 35.1(d) are not met, an application for post-
conviction relief is incomplete, and the trial court should enter appropriate orders
requiring the applicant to provide the missing evidence or an explanation for why the
evidence cannot be submitted. Furthermore, the State should not be required to respond
to the application until it is complete.

a. The superior court’s ruling and the parties’ arguments on appeal
As the majority opinion has explained, Talmadge’s application alleged,
inter alia, that his trial attorneys were ineffective because they did not interview
potential witnesses or gather documentation that would have shown that Talmadge was
not in Alaska when the sexual abuse occurred. The State moved to dismiss this claim,
arguing that Talmadge had not provided witness affidavits or documentary evidence
supporting his allegations, as is required by Alaska Criminal Rule 35.1(d). The superior
court agreed and dismissed Talmadge’s ineffective investigation claim, reasoning, in
part, that Talmadge had not provided affidavits or documentary evidence in support of
his claim nor explained why he could not provide this information. As support for its
decision, the superior court relied on this Court’s unpublished summary disposition in
Wilkerson v. State.1

1
Wilkerson v. State, 2020 WL 9174578 (Alaska App. Mar. 11, 2020) (unpublished
summary disposition).

– 18 – 2819
But Wilkerson involved the dismissal of an application at the second stage
of a post-conviction relief proceeding, after the parties had conducted discovery, and
thus it does not support the dismissal of Talmadge’s application. In the appellate
briefing, however, the parties note that Wilkerson was based on a published opinion —
Allen v. State — which has a procedural background somewhat closer to that in
Talmadge’s case.2 In Allen, as in Talmadge’s case, the State moved to dismiss the
application during the first stage of post-conviction proceedings rather than during the
second stage.3
Allen involved an appeal from the dismissal of an application for post-
conviction relief alleging ineffective assistance of counsel.4 In his application, Allen
claimed that his attorneys had incompetently failed to call two witnesses to testify
during his jury trial.5 Allen supported his application with affidavits from his attorneys
and from the investigators who worked on his case.6 In one investigator’s affidavit, she
explained that the two potential witnesses made favorable statements when speaking to
her, and summarized those statements.7 However, Allen’s application did not include
the personal affidavits of these two witnesses.8
The State moved to dismiss Allen’s application, arguing, inter alia, that
dismissal on the pleadings was appropriate because Allen had not provided personal

2
Allen v. State, 153 P.3d 1019, 1021 (Alaska App. 2007).
3
Id. at 1020-21.
4
Id.
5
Id. at 1021.
6
Id. at 1022.
7
Id. at 1021.
8
Id. at 1023, 1026.

– 19 – 2819
affidavits from the two witnesses.9 On appeal, this Court concluded that Allen’s failure
to include personal affidavits was “a potentially fatal flaw” in the application.10
However, we affirmed on other grounds.11
In Allen, we emphasized that post-conviction relief applicants “must
supply supporting affidavits . . . or . . . must explain why such affidavits cannot be
obtained,”12 and we noted that Allen had not only failed to provide affidavits, but had
failed to provide an explanation for their absence or to request more time to obtain
them.13 Further, we analogized this aspect of the post-conviction relief process to civil
motions for summary judgment:
By requiring the defendant to present affidavits from the
people who could actually give the proposed testimony in a
court proceeding, we are following the rule that applies to
the litigation of motions for summary judgement in other
civil cases.
When motions for summary judgement are litigated, the
ultimate question is whether the case presents any triable —
i.e., genuinely disputed — issues of material fact. In such
litigation, the parties normally rely on affidavits,
depositions, admissions, answers to interrogatories, and
similar evidentiary material that is produced outside of court
hearings. Nevertheless, if the parties choose to submit
affidavits, the affidavits must affirmatively show that the
affiant is competent to testify to the matters stated. In other
words, hearsay statements that would be inadmissible at trial

9
Id. at 1023.
10
Id. at 1025.
11
Id. at 1026-27.
12
Id. at 1026.
13
Id. at 1025.

– 20 – 2819
can not be employed to support or defend a motion for
summary judgement.[14]
In the present case, the State and Talmadge both agree that Allen’s analogy
to civil summary judgment motions was inapt. Allen involved an appeal from an order
granting the State’s motion to dismiss on the pleadings — i.e., for failure to state a
prima facie case for post-conviction relief.15 But rather than comparing the State’s
motion to a motion to dismiss under Alaska Civil Rule 12, we instead compared it to a
motion for summary judgment under Alaska Civil Rule 56.16
The parties disagree, however, about whether the superior court was
entitled to rely on Talmadge’s failure to support his claim with admissible evidence, or

14
Id.
15
Id. at 1021.
16
Id. at 1025. I note that a motion for summary judgment is typically adjudicated only
after the parties have had a reasonable opportunity to conduct necessary discovery, and
may be granted if there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. See Alaska R. Civ. P. 56(a), (c), (f); see also State v. Jones,
759 P.2d 558, 565-66 (Alaska App. 1988).
By contrast, a motion to dismiss for failure to state a claim may be filed prior to
filing the answer, and a court will grant the motion if it appears beyond doubt that the
plaintiff can prove no set of facts in support of their claim that would entitle them to relief.
See Alaska R. Civ. P. 12(b)(6); Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253-54
(Alaska 2000); Rae v. State, Dep’t. of Corr., 407 P.3d 474, 478 (Alaska 2017).
A motion for judgment on the pleadings is typically filed after the pleadings are
closed, but before the parties have conducted discovery. A court may grant the motion if,
viewing the facts presented in the pleadings in the light most favorable to the nonmoving
party, there exists no triable issue of fact, and the moving party is entitled to judgment as a
matter of law. See Alaska R. Civ. P. 12(c); Hebert v. Honest Bingo, 18 P.3d 43, 46-47
(Alaska 2001).
These distinctions are not perfectly rigid. For example, a motion for judgment on
the pleadings under Civil Rule 12(c) may be treated as a motion for summary judgment
under Civil Rule 56 if the moving party properly places matters outside of the pleading
before the court. Alaska R. Civ. P. 12(c).

– 21 – 2819
to otherwise explain why such evidence could not be provided, as a basis for summarily
dismissing Talmadge’s claim. Talmadge acknowledges that Allen may support the
summary dismissal of his claim, but he urges that Allen erroneously required an
application for post-conviction relief to be supported by admissible evidence in order
to plead a prima facie case.
Talmadge’s application for post-conviction relief, like Allen’s, included a
claim of ineffective pretrial investigation. In support of the application, Talmadge
submitted his own affidavit detailing the documentary evidence his trial attorney had
failed to obtain and the testimony certain witnesses could have provided. The State
moved to dismiss Talmadge’s ineffective investigation claim during the pleading stage,
arguing, as it had in Allen, that it was entitled to dismissal because Talmadge had not
provided affidavits, records, or other evidence supporting his allegations. The superior
court granted the State’s motion, stating that the claim must be dismissed because
Talmadge failed to attach the required evidence, or an explanation for why the evidence
was unavailable, to his application.
On appeal, Talmadge asserts that the superior court erred in summarily
dismissing his application for failing to plead a prima facie case. He contends that Allen
incorrectly stated that an application for post-conviction relief must be supported by
“affidavits from the people who could actually give the proposed testimony in a court
proceeding[.]”17 According to Talmadge, this erroneous statement was derived from the
Allen court’s misunderstanding of the distinction between a motion to dismiss for
failure to state a prima facie claim and a Civil Rule 56(e) motion for summary judgment.
The State responds that, while Allen’s analogy to summary judgment
motions under Civil Rule 56(e) was inaccurate, its fundamental holding was sound. The
State notes that Criminal Rule 35.1(d) requires that post-conviction relief applications
contain supporting affidavits or other documents at the pleading stage. It asserts that

17
Allen, 153 P.3d at 1025.

– 22 – 2819
dismissal for failure to state a prima facie claim is warranted if factual claims necessary
to stating a prima facie claim are not supported by admissible evidence or an
explanation for why such evidence has not been provided.

b. The history and plain language of Alaska Criminal Rule 35.1
Alaska Criminal Rule 35.1(d) sets out the required contents of an
application for post-conviction relief. The rule states, in relevant part, that an
application must
specifically set forth the facts and legal grounds upon which
the application is based, and . . . clearly state the relief
desired. Facts within the personal knowledge of the
applicant shall be set out separately from other allegations of
facts and shall be under oath. Affidavits, records, or other
evidence supporting its allegations shall be attached to the
application or the application shall recite why they are not
attached. . . . Applications which are incomplete shall be
returned to the applicant for completion.[18]
Notably, Criminal Rule 35.1(d) does not contain any procedure for
dismissing an application on the pleadings. Instead, the rule clearly instructs that
“[a]pplications which are incomplete shall be returned to the applicant for
completion.”19 (By contrast, Criminal Rule 35.1(f) describes the procedure for
obtaining judgment on the pleadings.)
The history of Criminal Rule 35.1 provides context for why the Alaska
Supreme Court included the provision that incomplete applications “shall be returned
to the applicant for completion.” This history suggests that this choice of remedy was
purposeful, and that the supreme court wanted applications to be complete before trial
courts adjudicated motions to dismiss because this would encourage trial courts to reach

18
Alaska R. Crim. P. 35.1(d).
19
Id. (emphasis added).

– 23 – 2819
the merits of post-conviction claims, rather than dismissing them on procedural
grounds, which in turn would promote fairness and reduce the likelihood that federal
courts would conduct evidentiary hearings into Alaska criminal convictions in habeas
corpus proceedings.
In 1961, the supreme court promulgated Alaska Criminal Rule 35(b),
which was a precursor to Criminal Rule 35.1 and was Alaska’s first rule setting out a
procedure for post-conviction relief.20 This first post-conviction relief rule was
patterned after 28 U.S.C. § 225521 and allowed prisoners to file motions attacking their
sentences if the sentence was, inter alia, “imposed in violation of the Constitution or
laws of the United States or . . . of Alaska.”22
In 1968, the Alaska Supreme Court enacted Supreme Court Order (SCO)
98, which rescinded the 1961 version of Criminal Rule 35(b) and replaced it with a
comprehensive post-conviction relief procedure that was codified as Criminal
Rule 35(b) through (j).23 The supreme court modeled this new procedure on the 1966

20
Compare SCO 30 (effective Feb. 1, 1961) (promulgating former Alaska R. Crim.
P. 35(b) (1961), which included the procedure for an application for a writ of habeas
corpus), with SCO 4 (effective Oct. 9, 1959) (promulgating former Alaska R. Crim.
P. 35(b) (1959), which only discussed the procedure for correcting an illegal sentence).
21
Rivett v. State, 395 P.2d 264, 270 (Alaska 1964) (explaining that Criminal
Rule 35(b) was patterned after a “similar provision in 28 U.S.C.A. § 2255”); McCracken
v. State, 482 P.2d 269, 273 (Alaska 1971) (explaining that Criminal Rule 35(b) “was based
essentially upon the provisions of 28 U.S.C. § 2255”); see also Sanders v. United States,
373 U.S. 1, 13 (1963) (explaining that Congress enacted 28 U.S.C. § 2255 “to minimize
the difficulties encountered in habeas corpus hearings by affording the same rights in
another and more convenient forum” (quoting United States v. Hayman, 342 U.S. 205, 219
(1952))).
22
Former Alaska R. Crim. P. 35(b) (pre-1968).
23
SCO 98 (effective Sept. 16, 1968).

– 24 – 2819
revision to the Uniform Post-Conviction Procedure Act (“the Revised UPCPA”),24 a
document originally published by the National Conference of Commissioners on
Uniform State Laws in 1955.25
Relevant to this appeal, SCO 98 set out the required contents of an
application for post-conviction relief. It provided, in relevant part,
Facts within the personal knowledge of the applicant shall
be set forth separately from other allegations of facts and
shall be under oath. Affidavits, records, or other evidence
supporting its allegations shall be attached to the
application or the application shall recite why they are not
attached. The application shall identify all previous
proceedings, together with the grounds therein asserted,
taken by the applicant to secure relief from his conviction or
sentence. Argument, citations and discussion of authorities
are unnecessary. Applications which are incomplete shall be
returned to the applicant for completion.[26]
This language was later incorporated into Criminal Rule 35.1(d), and
remains substantially the same today.27

24
See Merrill v. State, 457 P.2d 231, 237 (Alaska 1969) (“Approved in August of
1966, [the Revised UPCPA] became the basis for Alaska’s change in Criminal Rule 35[.]”);
State v. Price, 715 P.2d 1183, 1185 (Alaska App. 1986) (“Subsections (c) through (k) of
Criminal Rule 35 are derived from the Uniform Post-Conviction Procedure Act.”); Brown
v. State, 803 P.2d 887, 889 (Alaska App. 1990) (“[T]he Uniform Post-Conviction
Procedure Act of 1980 . . . revised the 1966 act from which Alaska’s [former Criminal Rule
35] is copied.”).
25
ABA Standards for Criminal Justice: Post-Conviction Remedies app. B. at 102
(Approved Draft 1968); see Note, The Uniform Post-Conviction Procedure Act, 69 Harv.
L. Rev. 1289, 1289 (1956).
26
SCO 98 (effective Sept. 16, 1968) (emphasis added).
27
Compare former Alaska R. Crim. P. 35.1(d) (1987), with Alaska R. Crim. P. 35.1(d)
(2025) (“Applications which are incomplete shall be returned to the applicant for
completion.”). In 1995, the Alaska Legislature passed legislation that, inter alia, enacted
AS 12.72.010-.040 (to set out grounds for post-conviction relief; list limitations on
applications for post-conviction relief; specify where an application must be filed; and
specify that the applicant has the burden of proving all factual assertions by clear and

– 25 – 2819
Most of this language, including the provision that “[a]ffidavits, records,
or other evidence supporting its allegations shall be attached to the application or the
application shall recite why they are not attached,” was copied verbatim from section
four of the Revised UPCPA.28 The only substantive difference between this provision
of SCO 98 and the related provision of the Revised UPCPA is the addition of the last
sentence, which states, “Applications which are incomplete shall be returned to the
applicant for completion.”29
To understand why the Alaska Supreme Court made this substantive
change, it is helpful to understand the federal legal landscape that prompted the supreme
court to enact SCO 98.30
In 1963, the United States Supreme Court decided three landmark cases
that expanded the authority of federal courts to review state criminal convictions. In
Townsend v. Sain, the Court held that the “federal court in habeas corpus must hold an
evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary

convincing evidence), and amended AS 18.85.100 (to afford indigent applicants the right
to appointed counsel). SLA 1995, ch. 79, §§ 9-10. This legislation also amended Criminal
Rule 35.1 to reflect these statutory changes. Id. at §§ 32-33, 38.
28
Compare former Alaska R. Crim. P. 35(e) (1968) (“Affidavits, records, or other
evidence supporting its allegations shall be attached to the application or the application
shall recite why they are not attached.”), with Nat’l. Conf. of Comm’r. on Unif. State Laws,
Proceedings in Committee of the Whole Second Revised Uniform Post-Conviction
Procedure Act at 13 (Aug. 3, 1966) (“Affidavits, records, or other evidence supporting its
allegations shall be attached to the application or the application shall recite why they are
not attached.”).
29
See supra note 27.
30
See generally Charles F. Baird, The Habeas Corpus Revolution: A New Role for
State Courts?, 27 St. Mary’s L.J. 297, 299-305 (1996) (reviewing the evolution of the
United States Supreme Court’s jurisprudence interpreting the writ of habeas corpus).

– 26 – 2819
hearing in a state court.”31 In Sanders v. United States, the Court explained that trial
courts may only summarily deny a second or successive petition if the claim had been
previously determined on the merits, or if the defendant intentionally withheld raising
the claim in a prior proceeding.32 And in Fay v. Noia, the Court held that the jurisdiction
of federal courts to consider habeas corpus claims “is not affected by procedural
defaults incurred by the applicant during the state court proceeding.”33
In 1966, the Alaska Supreme Court issued Thompson v. State.34 There, the
court explained that “recent United States Supreme Court decisions emphasize[] the
desirability of making findings of fact on possible constitutional questions at the trial
court level at the earliest appropriate occasion.”35 In support of this, Thompson quoted
a lengthy passage from Sanders:
Finally, we remark that the imaginative handling of a
prisoner’s first motion would in general do much to
anticipate and avoid the problem of a hearing on a second or
successive motion. The judge is not required to limit his
decision on the first motion to the grounds narrowly alleged,
or to deny the motion out of hand because the allegations are
vague, conclusional, or inartistically expressed. He is free to
adopt any appropriate means for inquiry into the legality of
the prisoner’s detention in order to ascertain all possible
grounds upon which the prisoner might claim to be entitled
to relief.[36]

31
Townsend v. Sain, 372 U.S. 293, 312 (1963).
32
Sanders v. United States, 373 U.S. 1, 15-18 (1963).
33
Fay v. Noia, 372 U.S. 391, 438 (1963).
34
Thompson v. State, 412 P.2d 628 (Alaska 1966).
35
Id. at 636.
36
Id. (quoting Sanders, 373 U.S. at 22).

– 27 – 2819
In 1968, two years after Thompson was decided, the Alaska Supreme
Court promulgated SCO 98.37 The rule file for SCO 98 contains a legal memorandum
that discusses Sain, Sanders, Noia, and Thompson.38 It stated that the requirements for
adequate post-conviction procedures evolved from the federal cases, and that Alaska
has adopted these standards through Thompson.39 The legal memorandum quoted
Sanders’s argument that an applicant “ought not to be held to the niceties of lawyers’
pleadings,” and that whether “his application is vexatious or repetitious, or that his
claim lacks any substance, must be fairly demonstrated.”40 The memorandum also
quoted a law review article that urged states seeking to “maximize state judicial control
over state convictions” to adopt post-conviction procedures that comport with federal
law to ensure that state courts recognize the “central requirement” for habeas corpus,
i.e., “a convicted person get[ing] a full evidentiary hearing on the merits of every federal
right he asserts.”41
Given this rule history, it is apparent that the Alaska Supreme Court added
the provision that incomplete applications “shall be returned to the applicant for
completion” in order to ensure that trial courts would primarily dismiss post-conviction

37
SCO 98 (effective Sept. 16, 1968).
38
Crim. Rules Comm., Federal Guidelines for Post Conviction Procedures, Rule File
for SCO 98 (effective Sept. 16, 1968), at 4-7.
39
Id. at 2, 7.
40
Id. at 7 (quoting Sanders, 373 U.S. at 22).
41
Id. at 8; Daniel J. Meador, Accommodating State Criminal Procedure and Federal
Postconviction Review, 50 A.B.A. J. 928, 929-30 (1964). Professor Meador added: “If the
state will provide this collateral remedy, it will be in position to make a final disposition in
a large proportion of its criminal cases. But if the state does not provide that kind of remedy,
it is probable that an equally large proportion of its cases will be retried in part in the federal
district courts.” Id. at 929. Meador also asserted that, in order to comport with federal law,
“state judges must learn to read inartfully drawn petitions liberally in favor of the prisoner.”
Id. at 930.

– 28 – 2819
claims on the merits, rather than on procedural grounds.42 If trial courts were able to
dismiss applications solely because they were incomplete, this could invite additional
habeas proceedings in federal court, the very outcome that the Alaska Supreme Court
sought to avoid by enacting SCO 98.43

42
See Waters v. State, 1996 WL 341613, at *5 (Alaska App. Mar. 20, 1996)
(unpublished) (explaining that when an application is returned as incomplete under
subsection (d), it may be revised and refiled but when an application is dismissed under
subsection (f)(2), the applicant generally is barred from future reassertion of the same
claim).
43
I note that the Alaska Supreme Court enacted SCO 98 amid a very different federal
habeas corpus landscape than the landscape that exists today. As previously explained, in
1963, the United States Supreme Court issued a trilogy of cases that expanded the authority
of federal courts to review state criminal convictions. See Townsend v. Sain, 372 U.S. 293,
312 (1963); Sanders, 373 U.S. at 15-18; Fay v. Noia, 372 U.S. 391, 438 (1963). The
Supreme Court laid the groundwork for these cases in the preceding decades by, inter alia,
expanding the scope of the writ of habeas corpus beyond “want of jurisdiction” claims to
federal constitutional claims. See Walker v. Johnston, 312 U.S. 275, 285 (1941) (holding
that the “only admissible procedure” for habeas corpus applications when an issue of fact
is presented is for the court to “issue the writ, have the petitioner produced, and hold a
hearing at which evidence is received”); Brown v. Allen, 344 U.S. 443, 464 (1953)
(“Although they have the power, it is not necessary for federal courts to hold hearings on
the merits, facts or law a second time when satisfied that federal constitutional rights have
been protected.”); see generally Baird, supra note 30, at 299-305. In 1968, the Alaska
Supreme Court enacted SCO 98 amid this flurry of federal case law expanding the scope
of the writ and the writ’s applicability to state criminal convictions.
Since 1968, federal habeas jurisprudence has changed significantly. The United
States Supreme Court has disavowed some of its landmark habeas corpus jurisprudence,
and Congress has enacted legislation that renders it more difficult for federal courts to
review state criminal convictions. See Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977)
(rejecting the “sweeping language” in Fay v. Noia making “federal habeas review
generally available to state convicts absent a knowing and deliberate waiver of the federal
constitutional contention” (citing Fay, 372 U.S. at 439 n.44)); Williams v. Taylor, 529 U.S.
420, 434 (2000) (acknowledging that 28 U.S.C. § 2254(e)(2) codified a stricter version of
the “diligence” rule that the Court adopted in Keeney v. Tamayo-Reyes, 504 U.S. 1, 4-11
(1992), which now makes it substantially more difficult for a petitioner to obtain an
evidentiary hearing in federal court if the petitioner did not develop the factual basis of a
claim in their state court proceedings); see also Baird, supra note 30, at 305-37 (discussing
how the Supreme Court narrowed the availability of federal habeas corpus by three primary

– 29 – 2819
The Alaska Supreme Court’s decision to require that incomplete
applications be returned to the applicant is also consistent with contemporaneous
commentary by the American Bar Association critiquing the Revised UPCPA. In 1968,
the American Bar Association’s Advisory Committee on Sentencing and Review issued
a report noting certain places in which the Revised UPCPA departed from the minimum
standards developed by the advisory committee.44 In the report’s comments about the
Revised UPCPA’s language requiring affidavits, records, or other evidence to be
attached to the application, the report noted that this language “appears to impose an
evidentiary burden” on the applicant but does not define “how much proof is
required.”45 The report went on to make the following statements:
[P]resumably a minimum quantum of some level is
contemplated [by the requirement to attach affidavits,
records or other evidence to the application]. Failure to
submit proof at the pleading stage does not lead to automatic
dismissal of the application since the requirement permits
the alternative of a recital of the reasons for the omission.
The proper disposition of an application unaccompanied by
the expected attachments and lacking in a satisfactory set of
excuses is not set forth, but most likely the application is
fatally defective on its face. All of this is quite contrary to

means: retroactive application, procedural default, and harmless error); Eve Brensike
Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-
Court Criminal Convictions, 61 Ariz. L. Rev. 291, 295-304 (2019) (discussing how the
procedural obstacles — e.g., statute of limitations and exhaustion doctrine — and
substantive obstacles — e.g., the Anti-Terrorism and Effective Death Penalty Act of 1996
and limits on cognizable claims — prevent federal courts from considering state prisoners’
habeas claims on the merits). Despite significant changes to federal habeas jurisprudence,
the structure and wording of these provisions in current Alaska Criminal Rule 35.1 —
including the provision at issue in Talmadge’s case — has remained largely intact since
1968.
44
ABA Standards for Criminal Justice: Post-Conviction Remedies app. B at 102-11
(Approved Draft 1968).
45
Id. at 106.

– 30 – 2819
the Minimum Standards view of the realistic functions that
can be assigned to the application stage of post-conviction
proceedings.[46]
Unlike the Revised UPCPA, SCO 98 clearly set forth the proper remedy
when an application is “unaccompanied by the expected attachments and lacking in a
satisfactory set of excuses.”47 Under SCO 98, “[a]pplications which are incomplete
shall be returned to the applicant for completion.”48 Thus, rather than merely adopting
the language of the Revised UPCPA, which was criticized for suggesting that an
incomplete application would be fatally defective on its face, the Alaska Supreme Court
instead added language clarifying that when an application is incomplete, the court must
require the applicant to complete it, either by filing the required attachments or by filing
a satisfactory explanation for why they are missing.49
I accordingly would conclude that both the plain language and the history
of Criminal Rule 35.1 direct that a failure to comply with the requirements of Criminal
Rule 35.1(d) is not grounds for summary dismissal of an application for post-conviction
relief prior to the discovery stage.
For all of these reasons, I disagree with the State’s contention that Alaska
Criminal Rule 35.1 permits dismissal for failure to state a prima facie claim if the

46
Id.
47
Id.
48
SCO 98 (effective Sept. 16, 1968).
49
If the applicant does not provide supporting evidence but does provide a satisfactory
explanation for why the evidence is not included, and if the facts alleged in the application
would entitle the applicant to relief, then the State must be called upon to respond on the
merits. See State v. Jones, 759 P.2d 558, 565-67 (Alaska App. 1988). But if the applicant
is unable to support their claim with admissible evidence even after being given a
reasonable opportunity to conduct necessary discovery, the claim may be summarily
dismissed under Criminal Rule 35.1(f)(3). See id. at 565-66.

– 31 – 2819
application does not contain either the documents required by section (d) (“affidavits,
records, or other evidence”) or an explanation for why the documents are absent.50

50
This Court previously reached this same conclusion in our unpublished
memorandum opinion in Waters v. State, 1996 WL 341613, at *4 (Alaska App. Mar. 20,
1996) (unpublished). There, we explained that Criminal Rule 35.1(d) “addresses form, not
substance” by prescribing “what types of information and documentation must be included
before an application is formally complete” and that “[n]othing in Rule 35.1(d) has to do
with whether an application sets forth a prima facie case for relief on the merits.” Id.
I acknowledge that in Peterson v. State we asserted that “[w]e have repeatedly stated
that the trial attorney’s affidavit is an essential component of the defendant’s prima facie
case — that without the affidavit (or an explanation of why the affidavit can not be
obtained), the defendant’s pleading is subject to summary dismissal.” Peterson v. State,
988 P.2d 109, 113-14 (Alaska App. 1999). However, none of the authority we cited
supports that assertion. We relied, for example, on Jones and on Steffensen v. State,
837 P.2d 1123 (1992), but neither of those cases contain this holding. Peterson, 988 P.2d
at 113-14 n.6-7. In Jones, we stated that
in order to establish a prima facie case of ineffective assistance of counsel, it
will ordinarily be necessary for the accused to submit an affidavit of trial
counsel addressing this issue. This requirement should not be enforced
inflexibly. In some cases, the accused may personally be aware of specific
facts ruling out the possibility of sound tactical choice, or there may be other
evidence available to rule out that possibility.
Jones, 759 P.2d at 570 (emphasis added). In Steffensen, we relied primarily on Jones, and
we stated that an attorney’s strategic decisions “generally rest on considerations that are
not directly addressed in open court” and that “[w]hen the record does not adequately reveal
the basis for the attorney’s decision, the defendant has failed to establish a case for post-
conviction relief.” Steffensen, 837 P.2d at 1127 (emphasis added).
In Peterson, we also relied on Lott v. State, 836 P.2d 371 (Alaska App. 1992).
Peterson, 988 P.2d at 114. We asserted that, in Lott, “we expressly held that an affidavit
from the former attorney is always required when a defendant seeks to withdraw a plea
based on allegations of ineffective representation.” Id. But this was incorrect. Lott contains
no such holding; instead, in Lott we stated that “a person claiming ineffective assistance of
counsel must normally present an affidavit or testimony from the allegedly ineffective
attorney, in order to establish the reasons for the attorney’s actions and to rule out the
possibility that the conduct was based on sound tactical choice.” Lott, 836 P.2d at 375
(emphasis added) (citing Jones, 759 P.2d at 569).

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c. The structure of Alaska Criminal Rule 35.1 and the analogous civil rules
My conclusion here is supported by the overall structure of Criminal
Rule 35.1. This Court has previously explained that this rule sets out three stages to
adjudicating an application for post-conviction relief.51 The first phase “commences
with the filing of the application.”52 During this phase, the applicant must file an
application that complies with the requirements of Criminal Rule 35.1(d), which
prescribes the types of information and documentation that must be included before an
application is formally complete. It is only after the State has been served with a
complete application that it is called upon by Criminal Rule 35.1(f)(1) to “file an answer
or a motion within 45 days.”
A motion to dismiss filed under Criminal Rule 35.1(f)(1) is similar to a
motion to dismiss filed under Alaska Rule of Civil Procedure 12(b). Under this rule, the
responsive party may file a motion to dismiss for failure to state a claim upon which
relief can be granted rather than asserting this defense by filing an answer.53 When a

51
Jones, 759 P.2d at 565-66.
52
Id. at 565; see also Alaska R. Crim. P. 35.1(c) (stating that a proceeding is
commenced by filing an application).
53
Compare Alaska R. Civ. P. 12(b)(6) (allowing certain defenses to be made by
motion prior to the filing of an answer, including a motion to dismiss for failure to state a
claim upon which relief can be granted), with Alaska R. Crim. P. 35.1(f)(1) (providing that
the State must file either an answer or a motion within 45 days of service of the application).
The standard a trial court applies when evaluating a Civil Rule 12(c) motion is
equivalent to the standard for evaluating a Civil Rule 12(b)(6) motion. See Cornelison v.
TIG Ins., 376 P.3d 1255, 1278 (Alaska 2016) (“[T]he requirements for a Rule 12(c) motion
are akin to the requirements of Rule 12(b)(6).”); see also 5C Wright & Miller, Federal
Practice and Procedure § 1368 (3d ed. 2025) (“A significant number of federal courts have
held that the standard to be applied to a Rule 12(c) motion that challenges the legal
sufficiency of a claim [based on all the pleadings] is identical to that used on a Rule
12(b)(6) motion based solely on the complaint.”); compare McGrew v. State, Dep’t of
Health & Soc. Servs., Div. of Fam. & Youth Servs., 106 P.3d 319, 322 (Alaska 2005) (“A
complaint should not be dismissed for failure to state a claim [under Rule 12(b)(6)] unless
it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claims

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motion to dismiss for failure to state a prima facie case is filed under Criminal
Rule 35.1(f)(1), the trial court must determine the adequacy of the application on its
face,54 viewing “the facts presented in the pleadings and the inferences to be drawn
therefrom in the light most favorable to the nonmoving party.”55 If the court ultimately
finds that the application presents a colorable claim, the court must order the case to
proceed and call upon the State to respond on the merits, and the second phase of the
post-conviction proceedings — set out under Criminal Rule 35.1(f)(3) — commences.56

that would entitle the plaintiff to relief.”), with Prentzel v. State, Dep’t of Pub. Safety, 53
P.3d 587, 590 (Alaska 2002) (“The . . . defendants can prevail [on their Rule 12(c) motion]
only if [the plaintiff’s] pleadings contain no allegations that would permit recovery if
proven.”).
Although these rules require the court to apply the same legal standards, when a
motion to dismiss a post-conviction relief application for failure to state a prima facie case
is filed in lieu of filing an answer, it is more like Civil Rule 12(b)(6) than Civil Rule 12(c)
because, like a Civil Rule 12(b)(6) motion, a Criminal Rule 35.1(f)(1) motion may be filed
prior to the filing of an answer, and thus may be based on the application alone. By contrast,
a Civil Rule 12(c) motion is filed “[a]fter the pleadings are closed” — i.e., after the answer
is filed. I accordingly disagree with our assertion in State v. Jones that a motion to dismiss
filed under Criminal Rule 35.1(f)(1) is equivalent to a civil motion for judgment on the
pleadings under Civil Rule 12(c). Jones, 759 P.2d at 565.
54
Jones, 759 P.2d at 565.
55
Hebert v. Honest Bingo, 18 P.3d 43, 46-47 (Alaska 2001); see Jones, 759 P.2d at
565; Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253-54 (Alaska 2000) (explaining
that courts reviewing a motion to dismiss under Civil Rule 12(b)(6) must deem all facts in
the complaint to be true and provable and that “[a] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief”) (quoting Martin v. Mears,
602 P.2d 421, 429 (Alaska 1979)).
56
Alaska R. Crim. P. 35.1(f)(2); see also Jones, 759 P.2d at 565-66 (“[I]f the
application . . . sets out facts which, if true, would entitle the applicant to the relief claimed,
then the court must order the case to proceed and call upon the state to respond on the
merits . . . . [This] commences the second phase of the post-conviction relief proceeding.”).

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During the second phase, the parties are given an opportunity to engage in
the discovery process, so that they may “ascertain whether any genuine issues of
material fact actually exist.”57 This second stage is designed to provide “an orderly
procedure for the expeditious disposition of non-meritorious applications . . . without
the necessity of holding a full evidentiary hearing.”58 To this end, Criminal
Rule 35.1(f)(3) permits either party to file a motion for summary disposition of the
application by alleging that “there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Such a motion is “in substance identical
to a Civil Rule 56 motion for summary judgment.”59
Following the same procedure for Civil Rule 56, at the Criminal
Rule 35.1(f)(3) stage, the party moving for summary disposition and the party opposing
summary disposition ordinarily must support their positions with admissible evidence.60
Although a party may request additional time for the purpose of obtaining evidence to
defeat summary disposition, if the request for additional time is based on pure
speculation that material evidence will be obtained or if the party was dilatory in their
previous discovery efforts, the court may deny the request.61

57
Jones, 759 P.2d at 566.
58
Fajeriak v. State, 520 P.2d 795, 798 (Alaska 1974).
59
Jones, 759 P.2d at 566.
60
See Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527
P.2d 447, 450 (Alaska 1974) (stating that a party seeking summary judgment under Civil
Rule 56 must meet its burden by submitting “material admissible as evidence”); Miller v.
City of Fairbanks, 509 P.2d 826, 829 (Alaska 1973) (same).
61
See Wilkerson v. State, 2020 WL 9174578, at *2-3 (Alaska App. Mar. 11, 2020)
(unpublished summary disposition) (affirming the superior court’s order granting the
State’s motion for summary disposition since Wilkerson did not provide “factual support
for his [post-conviction relief] claims despite being given ample opportunity to do so”);
Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005) (explaining that for a party to receive
a continuance under Civil Rule 56(f), it “(1) must unambiguously request relief on those
grounds, (2) must not have been dilatory during discovery, and (3) must provide adequate

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The third and final phase of a post-conviction relief proceeding is the
evidentiary hearing provided for under Criminal Rule 35.1(g). Such a hearing is
required “when, upon completion of the discovery and summary disposition phase,
genuine issues of material fact remain to be resolved.”62

d. My view of the correct interpretation of Alaska Criminal Rule 35.1 and its
application to this case
The superior court dismissed Talmadge’s application during the first
phase of the proceedings. With regard to Talmadge’s claim that his attorney was
ineffective for failing to call certain witnesses to testify at his trial, the superior court
noted that Talmadge provided only his own affidavit and did not provide affidavits from
the witnesses he alleged should have been called, nor did he provide an explanation for
why these affidavits were not provided. Because Talmadge did not supply these
affidavits or an explanation for their absence, the superior court found that he failed to
establish a prima facie case.
But as I have explained, during the first phase of post-conviction relief
proceedings, the question of whether the application is complete is a separate question
from the question of whether the application states a prima facie claim for relief, and it
has a separate remedy. If an application is incomplete, Rule 35.1(d) instructs that it
“shall be returned to the applicant for completion.”63 But when the State files a motion

reasons why additional time is needed”); Punches v. McCarrey Glen Apartments, LLC, 480
P.3d 612, 623-34 (Alaska 2021) (reasserting that courts should not grant Rule 56(f)
continuances “to support ‘speculation’” (quoting Sengupta v. Univ. of Alaska, 21 P.3d
1240, 1260 (Alaska 2001))).
62
Jones, 759 P.2d at 566.
63
Alaska R. Crim. P. 35.1(d) (emphasis added). This requirement is similar to Rule 2
and Rule 3 of the rules governing federal habeas petitions. See Rules Governing § 2254
Cases, Rule 2 & Rule 3, 28 U.S.C.A. foll. § 2254. Prior to 2004, these rules required the
court to return an insufficient petition and to dismiss the petition without prejudice if the
petition had a curable technical deficiency. See Advisory Committee Notes to 2004

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to dismiss for failure to state a prima facie case under Rule 35.1(f)(1), the trial court
must determine the adequacy of the complete application on its face.64 If the allegations
made in the complete application, viewed in the light most favorable to the nonmoving
party, do not establish a claim for relief, the proper remedy is dismissal of the
application.65
This does not mean that Criminal Rule 35.1 fails to provide any procedural
safeguards against the filing of frivolous applications for post-conviction relief. Indeed,
the pleading requirements set out by Criminal Rule 35.1(d) are more stringent than
those that are required by the rules that apply to civil cases. 66 Unlike a civil complaint,
which may be filed without supporting evidence, an application for post-conviction

Amendments to Rules 2 and 3 of the Section 2254 Rules and Section 2255 Rules. This
became problematic for petitioners after the adoption of a one-year statute of limitations in
the Antiterrorism and Effective Death Penalty Act of 1996 because returning a defective
petition could pose a significant penalty for a petitioner who was not able to file a corrected
petition within the one-year statute of limitations. Id. In response to this harsh punishment
for a procedural error, the Committee changed the rules so that clerks must accept a petition
for filing even if the petition does not conform to the requirements of Rule 2. Id. In a similar
vein, every circuit court that has addressed the issue has determined that equitable tolling
of the statute of limitations may be available. See, e.g., Smith v. McGinnis, 208 F.3d 13,
17-18 (2d Cir. 2000); Miller v. N.J. State Dep’t of Corrs., 145 F.3d 616, 618-19 (3d Cir.
1998); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
64
Jones, 759 P.2d at 565.
65
Hebert v. Honest Bingo, 18 P.3d 43, 47-48 (Alaska 2001); Jones, 759 P.2d at 565.
66
Compare Alaska R. Crim. P. 35.1(d) (mandating that a post-conviction relief
application include “[a]ffidavits, records, or other evidence supporting its allegations . . .
[or] recite why they are not attached”), with Alaska R. Civ. P. 8(a), 10, and 11(b) (allowing
plaintiffs to file civil complaints without supporting evidence).

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relief must be accompanied by affidavits, records, or other evidence supporting the
allegations, or must explain why such evidence is not being presented.67
These stringent pleading requirements allow the court to return
applications that rely upon unsupported factual allegations, either sua sponte or upon
request from the State, thus making it unnecessary for the State to expend time and
effort preparing an answer or a responsive motion. Furthermore, if the applicant
explains that they have been unable to obtain supporting evidence despite exercising
reasonable diligence, but they provide no basis for the court to expect that such evidence
could be obtained through the discovery process, the court may properly dismiss the
application at this early stage.68 In Talmadge’s case, rather than enforcing Rule 35.1(d)
and returning the application to the defendant for completion, the superior court
dismissed the application during the first phase of the litigation, relying on Talmadge’s
failure to attach supporting evidence to conclude that the application had not set out a
prima facie case. Under my interpretation of Rule 35.1(d), this was error.

e. Why I would disavow a portion of our previous decision in Allen v. State
As I have explained, in Allen v. State, this Court stated that a motion to
dismiss an application for post-conviction relief for failure to state a prima facie claim
for relief is, in substance, identical to a Civil Rule 56 motion for summary judgment.69

67
Alaska R. Crim. P. 35.1(d). As the State points out, the likely reason for this
difference is that, unlike most civil actions, a post-conviction relief action is a collateral
attack upon a final criminal judgment that is presumed valid.
68
Indeed, if a court determines that an application is incomplete, the court should set
reasonable deadlines for completion and should enforce its deadlines. And if the court
determines that an attorney is not exercising due diligence to comply with the court’s
deadlines, the court should take appropriate action, including fining the attorney or taking
other disciplinary action as permitted under Alaska Rule of Criminal Procedure 50(b)
and (c) and Alaska Rule of Civil Procedure 95.
69
Allen v. State, 153 P.3d 1019, 1025 (Alaska App. 2007).

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We also announced that a failure to provide supporting affidavits from people with
firsthand knowledge of the pertinent information if called to the stand — or,
alternatively, an explanation for why such affidavits cannot be obtained — would
constitute a valid basis for dismissing Allen’s application.70 However, these statements
in Allen were mistaken and should be disavowed.
It is important to note, however, that in Allen, the superior court did not
rely upon Allen’s failure to provide supporting evidence when it dismissed his
application for post-conviction relief. And this Court similarly did not affirm the
superior court’s order on that basis.71 Rather, we affirmed the superior court’s order
because we determined — as had the superior court — that the facts alleged in Allen’s
application, if assumed to be true, failed to state a prima facie case of attorney
incompetence.72 Thus, Allen’s discussion pertaining to Criminal Rule 35.1(d) is dicta,
and this Court does not need to overrule it in order to correct it.73
But if it were necessary to overrule Allen in order to correct it, I would
conclude that the standard for doing so has been met.74 Allen’s interpretation of

70
Id. at 1025-26.
71
Id. at 1026.
72
Id. at 1026-27.
73
See Buntin v. Schlumberger Tech., 487 P.3d 595, 601 (Alaska 2021) (“Expressions
in the court’s opinion which go beyond the facts before the court are individual views of
the author of the opinion and not binding in subsequent cases as legal precedent.” (quoting
VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (cleaned up)).
74
See Young v. State, 374 P.3d 395, 413 (Alaska 2016) (“We will overrule a prior
decision only when clearly convinced that the rule was originally erroneous or is no longer
sound because of changed conditions, and that more good than harm would result from a
departure from precedent.” (cleaned up)); see also Pratt & Whitney Can., Inc. v. Sheehan,
852 P.2d 1173, 1176 (Alaska 1993) (“A decision may prove to be originally erroneous if
the rule announced proves to be unworkable in practice.”); State v. Dunlop, 721 P.2d 604,
610 (Alaska 1986) (“We do not lightly overrule our past decisions.”).

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Criminal Rule 35.1 was erroneous and has led to courts dismissing applications based
on a technicality that an applicant or their attorney could easily have cured, rather than
deciding these applications on their merits.75 I note that Alaska Criminal Rule 35.1 does
not authorize courts to rely on an application’s failure to include the documents required
by section (d) (“affidavits, records, or other evidence”), or an explanation for why the
documents are absent, as a basis for determining that the application fails to state a
prima facie claim.
Furthermore, by mistakenly comparing a Criminal Rule 35.1(f)(1) motion
for failure to state a prima facie claim to a Civil Rule 56 motion for summary judgment,
our opinion in Allen incorrectly stated that Criminal Rule 35.1(d) can only be satisfied
with “admissible” evidence, such as supporting affidavits from people who could testify
to the pertinent information if called to the stand. This requirement exists for motions
filed during the second phase of the post-conviction proceedings, which are analogous
to civil summary judgment motions and accordingly do require the parties to provide
“admissible” evidence, but it does not exist at the first phase.76
Because more good than harm would flow from overruling our incorrect
statements in Allen, and because the parties have fully briefed this issue, I would take
this opportunity to clarify two points of law. First, a motion to dismiss an application
for post-conviction relief based on an alleged failure to state a prima facie claim for
relief is not analogous to a Civil Rule 56 motion for summary judgment. Second, failure
to comply with the requirements of Criminal Rule 35.1(d) is not grounds for dismissing
an application for failure to state a prima facie claim.

75
See Waters v. State, 1996 WL 341613, at *5 (Alaska App. Mar. 20, 1996)
(unpublished) (explaining that “[t]he distinction between returning an incomplete
application, as directed in Rule 35.1(d) itself, and summarily dismissing an application
under Rule 35.1(f)(2) cannot be dismissed as inconsequential”).
76
See Waters, 1996 WL 341613, at *4.

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