Nelson v. State
273 P.3d 608
Alaska2012Background
- Nelson was convicted in 1996 of five counts of sexual abuse of minors; his trial counsel was Hemby.
- Nelson sought post-conviction relief in 2002 with 35 claims of ineffective assistance, requiring an affidavit from Hemby addressing claims.
- Hemby invoked the Fifth Amendment at a deposition regarding his representation of Nelson, and Judge Thompson unrecordedly excused Nelson from the affidavit requirement.
- Judge Thompson excused the remaining 34 claims for lack of prima facie showing and granted summary judgment on the sole surviving claim after deposition issues.
- The Alaska Court of Appeals affirmed; Nelson challenged whether the defense counsel competence presumption applies when counsel invokes the Fifth Amendment.
- The Alaska Supreme Court granted review to decide the effect of Fifth Amendment invocation on the competence presumption and burden of proof in post-conviction relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fifth Amendment invocation affects the competence presumption. | Nelson argues presumption of competence should not apply after Fifth Amendment invocation by counsel. | State argues invocation alone does not rebut the presumption; must consider case-specific context. | Adverse inferences may be drawn case-by-case, but general invocation does not rebut the presumption. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes standard for evaluating ineffective assistance of counsel)
- Baxter v. Palmigiano, 425 U.S. 308 (U.S. 1976) (adverse inferences may be drawn in civil proceedings from privilege claims)
- LiButti v. United States, 107 F.3d 110 (2d Cir. 1997) (factors for drawing adverse inferences from non-party privilege assertions)
- FDIC v. Fidelity & Deposit Co. of Md., 45 F.3d 969 (5th Cir. 1995) (case-by-case evaluation for adverse inferences from privilege)
- Jones v. State, 759 P.2d 558 (Alaska App. 1988) (post-conviction relief burden and prima facie standard)
- Hensel v. State, 604 P.2d 222 (Alaska 1979) (post-conviction relief governed by civil procedures)