MCNEELY v. STATE (2026)

Order

Alaska's Uniform Criminal Extradition Act (UCEA), codified at AS 12.70, protects the rights of persons subject to extradition warrants. Under AS 12.70.090, a person arrested on an extradition warrant has the right to test the legality of the arrest through a petition for writ of habeas corpus.¹ The person also has “the right to demand and procure legal counsel.”²

Although public counsel was originally appointed in this case (and to our knowledge is generally appointed to indigent defendants in fugitive from justice cases in Alaska), the Alaska appellate courts have never directly addressed the question of whether the statutory right “to demand and procure legal counsel” under AS 12.70.090 includes the right to court-appointed counsel. The overwhelming majority of states construing identical language in their uniform criminal extradition acts have held that the right to “demand and procure legal counsel” includes the right to court-appointed counsel for indigent defendants.³

In the current case, Donald Richard McNeely ⁴ was arrested and held on a fugitive warrant from California for charges related to several burglaries that took place in San Diego County in February 2026. McNeely is indigent, and the district court initially appointed the Alaska Public Defender Agency to represent him. However, at McNeely's request, the court held a representation hearing at which McNeely waived his right to counsel and was allowed to proceed pro se.

McNeely subsequently filed a pro se petition for writ of habeas corpus, challenging his extradition. Soon thereafter, however, McNeely attempted to file a motion for appointment of counsel, asserting that he was not capable of representing himself because of physical and mental health ailments. (It appears that this motion was rejected for filing because it was on the wrong form.)

At the subsequent evidentiary hearing before the superior court on McNeely's habeas petition, McNeely again requested court-appointed counsel, and again asserted that he was in poor physical and mental health and unable to represent himself. According to McNeely, he had recently been in the hospital, had an MRI a week ago, his health was declining, and he had service-related traumatic brain injuries.

The superior court responded that there was no right to appointed counsel in a civil (habeas) case.⁵ The superior court ruled that the statutory right “to demand and procure legal counsel” under AS 12.70.090 was a right to procure retained counsel, not a right to court-appointed counsel. The court then directed the State to proceed with its evidence.

A few minutes later, the superior court interrupted the proceedings because McNeely reported having medical issues. McNeely reported having pain and taking “some nitro” that was not helping. An ambulance was called for him, and the hearing was terminated.⁶

At the next hearing, McNeely appeared telephonically. He stated that he had just returned from the hospital and that medical had not “cleared” him. McNeely told the superior court that he was not ready to proceed, and he referred again to his motion for appointed counsel. The State responded that McNeely was not entitled to counsel in a habeas case and that, in any case, he had been found competent to represent himself in his criminal extradition case. The court expressed concern that McNeely's requests for counsel were simply delay tactics, and made findings that McNeely had repeatedly sought to continue or delay the matter in other ways as well.

The superior court subsequently denied McNeely's request for counsel and for a continuance, and the State proceeded to present its evidence. While the State was still presenting its evidence, McNeely hung up. When he was reconnected, the court asked if it was his intent not to participate in the hearing. McNeely stated that he needed to see medical and hung up a second time. The superior court directed the State to proceed with the presentation of its evidence.

After the hearing ended, the superior court took a brief recess and then returned and put its findings on the record. The superior court found, inter alia, that the evidence showed that McNeely was the person named in the warrant and that McNeely had been in California at the time of the alleged offenses.⁷ The superior court also ruled that McNeely was not entitled to court-appointed counsel because there was no Alaska law directly establishing that right. The court found that McNeely had voluntarily chosen to waive the counsel he had been appointed and that his requests for reappointment of counsel appeared to be a delay tactic. The court expressed skepticism about McNeely's medical issues, noting that McNeely had not provided any outside verification of these medical issues and that the alleged medical issues also seemed to be a delay tactic. Based on these findings, the superior court denied McNeely's petition for writ of habeas corpus.

McNeely now appeals, raising various claims of error. The dispositive claim, in our view, is McNeely's claim that the superior court erred when it failed to reappoint him counsel. McNeely asserts that persons in extradition habeas proceedings are entitled to court-appointed counsel and that the superior court erred as a matter of law when it ruled that there was no such right to court-appointed counsel.

The State argues that we need not reach the question of whether persons in extradition habeas proceedings are entitled to court-appointed counsel because McNeely waived his right to counsel and chose to proceed pro se. The State asserts that, even assuming arguendo that McNeely had a right to court-appointed counsel, the superior court acted within its discretion when it denied McNeely's request for reappointment of counsel because the request was untimely (the habeas proceedings had already begun) and because the request was seemingly motivated by McNeely's desire for delay.

The State is correct that ordinarily we would review a trial court's ruling on a defendant's request for reappointment of counsel following a valid waiver of counsel under the deferential abuse of discretion standard.⁸ But the abuse of discretion standard does not apply when the question is whether the trial court applied the correct law. That is, whether the trial court applied the correct legal standard in the exercise of its broad discretion is a question of law that we review de novo using our independent judgment.⁹

Here, the superior court ruled that there was no statutory right to court-appointed counsel in extradition habeas proceedings because the court interpreted the statutory language “the right to demand and procure legal counsel” under AS 12.70.090 as referring only to the right to procure retained counsel. But, as we noted at the beginning of this order, the overwhelming majority of jurisdictions have construed that language, which is derived from the Uniform Criminal Extradition Act, to require court-appointed counsel for indigent defendants in extradition habeas proceedings. Although we have not previously addressed this question, it also appears to be the practice of the courts to appoint the Public Defender Agency in extradition proceedings. Moreover, in Kostic v. Smedley, the Alaska Supreme Court recognized extradition habeas corpus proceedings as “criminal in nature” and the defendant in that case was represented by the Public Defender Agency.¹⁰

We now expressly hold, consistent with the holdings of the vast majority of jurisdictions, that “the right to demand and procure legal counsel” under AS 12.70.090 includes the right to court-appointed counsel for indigent defendants. Because we cannot know how the superior court may have exercised its discretion if it had been aware of this governing law, we VACATE the court's ruling denying McNeely's petition for writ of habeas corpus and REMAND this case to the superior court for appointment of public counsel and further proceedings. We note, however, that extradition habeas corpus proceedings are intended to be expedited and limited in scope, and the superior court retains broad discretion to ensure that the proceedings occur without any further delay.

FOOTNOTES

1.   A petition for writ of habeas corpus in extradition matters is limited to the following inquiries: “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978).

2.   AS 12.70.090 provides:A person arrested on a warrant may not be delivered over to the agent who the executive authority demanding the person has appointed to receive the person unless the person is first taken immediately before a judge or magistrate of this state, who shall inform the person of the demand made for the person's surrender, and of the crime with which the person is charged, and that the person has the right to demand and procure legal counsel. If the prisoner or the prisoner's counsel states a desire to test the legality of the arrest, the judge or magistrate shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When that writ is applied for, notice of the application and of the time and place of hearing on it shall be given to the prosecuting attorney of the judicial district in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

3.   See, e.g., People ex rel. Harris v. Ogilvie, 35 Ill.2d 512, 221 N.E.2d 265, 267 (1966) (holding that the UCEA “requires that counsel be appointed to represent indigent persons who do not have the means to procure counsel for themselves”); Ex parte Turner, 410 S.W.2d 639, 640-41 (Tex. Crim. App. 1967) (holding that the UCEA “requires that counsel be appointed to represent indigents who do not have the means to procure counsel for themselves”); Woody v. State, 215 Kan. 353, 524 P.2d 1150, 1155-56 (1974) (holding that the UCEA requires appointed counsel for indigent habeas corpus petitioners); Mora v. Dist. Ct. in & for First Jud. Dist., 177 Colo. 381, 494 P.2d 596, 597-98 (1972); Denbow v. Dist. Ct. in & for Twenty-First Jud. Dist., 652 P.2d 1065, 1066 (Colo. 1982) (holding that “indigents have a right to appointed counsel in habeas corpus proceedings testing the validity of arrest on an extradition warrant”); Bentzel v. State, 585 So. 2d 1118, 1120 (Fla. App. 1991) (holding that an indigent prisoner had a statutory right to appointed counsel at an extradition hearing); Helton v. Tehan, 241 N.E.2d 100, 101-02 (Ohio C.P. 1968); see also Ex parte Potter, 21 S.W.3d 290, 294-96, 296 n.6 (Tex. Crim. App. 2000) (holding that the right to counsel in proceedings challenging extradition includes the right to effective assistance of counsel); but see Sullivan v. State, 43 Ala.App. 133, 181 So.2d 518, 520 (1965) (representing the minority view that a defendant in an extradition habeas corpus proceeding has no right to court-appointed counsel).

4.   We note that in his pleadings before this Court, the appellant spells his name with an extra “e” — i.e., “McNeeley.”

5.   We are uncertain from the record before us how the superior court viewed the initial appointment of counsel that occurred in McNeely's case. It is possible that the court viewed this appointment as merely discretionary or as limited to the criminal extradition case, rather than extending into any extradition-related habeas proceedings. But as AS 12.70.090 makes clear, the two proceedings are directly related to one another, notwithstanding the separate case number assigned here to the habeas proceedings.

6.   In his pleadings on appeal, McNeely asserts that he had a heart attack at the hearing. The appellate record does not contain any documentation regarding McNeely's condition.

7.   The court also found, in the alternative, that McNeely had not actually put his identity into contention. See Evans v. State, 820 P.2d 1098, 1099 (Alaska App. 1991) (explaining that the accused fugitive bears the burden of establishing that they were not present in the demanding state at the time of the crime).

8.   See Henry v. State, 2021 WL 3909975, at *5 (Alaska App. Sep. 1, 2021) (unpublished) (affirming superior court's denial of defendant's request for reappointment of counsel as within the court's discretion).

9.   See, e.g., Million v. Hubert, 584 P.3d 476, 484 (Alaska 2026) (“ ‘Whether a trial court applied the correct legal rule in exercising [its] discretion is a question of law’ we review de novo.”); Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017) (“We review evidentiary rulings for abuse of discretion, although whether the trial court applied the correct legal standard presents a question of law that we review de novo.”); Adamson v. Municipality of Anchorage, 333 P.3d 5, 11 (Alaska 2014) (applying de novo review to a question that is ordinarily reviewed for abuse of discretion when the underlying ruling required statutory interpretation).

10.   Kostic v. Smedley, 522 P.2d 535, 537 (Alaska 1974).

Entered at the direction of the Court.