Background
In February 2009, Kenneth Goldsbury was living at the Roadside Inn in Wasilla when a drunken dispute with a neighbor escalated into violence. After being asked to leave the bar, Goldsbury returned to his room. When his neighbor Marvin Long knocked on his door roughly a half-hour later, Goldsbury fired a shotgun loaded with birdshot through the closed door, inflicting superficial wounds on Long. A jury convicted Goldsbury of attempted murder, and both the Alaska Court of Appeals and the Alaska Supreme Court affirmed on direct appeal. Goldsbury v. State (I), 2012 WL 2203055 (Alaska App. 2012); Goldsbury v. State (II), 342 P.3d 834 (Alaska 2015).
After the direct appeals concluded, Goldsbury filed a petition for post-conviction relief (PCR) in the superior court, later amending it to allege multiple failures by his trial attorney. The superior court dismissed most of those claims for failing to present a prima facie case, allowed two to proceed to merits review, and rejected both on the merits. On this second appeal, Goldsbury argues that his assigned PCR attorney provided constitutionally ineffective assistance—and that the superior court should have recognized the problem and intervened before dismissing his underdeveloped claims.
The Court’s Holding
Tazruk/Demoski remand denied. The Court of Appeals rejected Goldsbury’s argument that the superior court should have halted the PCR proceedings and taken corrective action under Tazruk v. State, 67 P.3d 687 (Alaska App. 2003), and Demoski v. State, 449 P.3d 348 (Alaska App. 2019). In Amarok v. State, 543 P.3d 259 (Alaska App. 2024), the court clarified that a Tazruk/Demoski remand is available only in situations where “the representation is so facially inadequate as to obviate the need to show prejudice.” When a defendant believes PCR counsel performed incompetently, the proper vehicle is a second PCR petition, as authorized by Grinols v. State, 74 P.3d 889 (Alaska 2003). Here, PCR counsel actively investigated several of Goldsbury’s claims and moved two of them past the motion-to-dismiss stage—a record that falls far short of facial inadequacy.
Res judicata bars one dismissed claim. Goldsbury’s claim that his trial attorney failed to object to the prosecutor’s comment on his silence during closing argument was already resolved against him in the prior appellate proceedings. In Goldsbury II, the supreme court held that even if trial counsel had objected, there was no prejudice: the comment was “brief, isolated, and indirect,” and the trial judge gave curative instructions both before and immediately after closing argument. Because the prejudice question was decided against Goldsbury in Goldsbury II, the ineffective assistance claim premised on the same failure is barred by res judicata.
Trial counsel’s advice not to testify was not incompetent. The two claims that survived to merits review both arose from Goldsbury’s decision not to take the stand. The superior court rejected the first claim—that counsel ordered, rather than merely advised, Goldsbury not to testify—and Goldsbury does not contest that ruling on appeal. On the second claim, the court found that trial counsel had a sound tactical rationale for advising Goldsbury not to testify: if Goldsbury had taken the stand, his testimony would likely have opened the door to evidence that he had previously fired a weapon through a boat porthole during another dispute—highly prejudicial other-bad-act evidence the trial court had excluded. Trial counsel also mounted a coherent non-testimonial defense, arguing to the jury that Goldsbury had loaded the least-deadly ammunition available, had voluntarily told troopers he fired only to deter Long, and could have used more lethal shotgun slugs but chose not to.
Key Takeaways
- When a defendant claims their PCR attorney was ineffective, the correct remedy under Alaska law is a second PCR petition—not a Tazruk/Demoski remand; such a remand is reserved for representation so deficient that prejudice need not be shown, and a record where PCR counsel investigated multiple claims and moved some past the prima facie threshold will not satisfy that standard.
- A prior appellate ruling finding no prejudice from a given trial error has res judicata effect in subsequent PCR proceedings; if the appellate court already held the same trial error harmless, a later petition cannot relitigate prejudice through an ineffective assistance theory built on that same error.
- Advising a defendant not to testify is not ineffective assistance when there is a sound tactical reason—such as the risk that testimony would open the door to excluded other-bad-act evidence—and trial counsel is otherwise able to present a viable defense through closing argument and the trial record.
Why It Matters
Goldsbury illustrates the layered procedural framework Alaska courts use to manage successive attacks on criminal convictions. The case confirms that Amarok v. State has meaningfully narrowed the Tazruk/Demoski remand mechanism: defendants who believe their PCR attorney under-performed cannot simply ask the appellate court to send the case back for a do-over. The appropriate forum for that grievance is a second PCR petition, where the defendant must develop an adequate record before the superior court. That allocation places the burden on the defendant to timely and competently prosecute post-conviction claims—and it limits appellate intervention to truly egregious circumstances.
The res judicata holding is a practical reminder for PCR practitioners in Alaska: before investing in an ineffective assistance theory premised on trial counsel’s failure to object to a specific error, counsel should audit what prior appellate decisions already say about the prejudice from that error. If an earlier court found the same trial error harmless, the IAC claim built on it will not survive.