Opinion
Court of Appeals No. A-8885.
December 3, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, and Douglas L. Blankenship, Judges, Trial Court Nos. 4FA-03-01863 CI 4FA-87-00642 CR.
Ronald A. Offret, Aglietti, Offret Woofter, Anchorage, for Appellant.
W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGEMENT
On March 31, 1998, Donna Mathis Armey filed an application for post-conviction relief (PCR). Superior Court Judge Charles R. Pengilly dismissed this application on January 6, 1999. On August 25, 2003, Armey filed a second PCR application in which she alleged, among other things, that both her trial counsel and her counsel on her first PCR application provided ineffective assistance of counsel. On June 15, 2004, Judge Pengilly dismissed Armey's second PCR application. Armey appealed to this court.
In a Memorandum Opinion and Judgment, we noted that it appeared from the appellate record that Armey had filed her first PCR application after the statute of limitations had expired. We reasoned that, if Armey's first application was untimely, it would have been impossible for Armey to show that she was prejudiced by the representation she received in her first application. But because Armey had not had an opportunity to show why her claim should not be dismissed because she had not complied with the statute of limitations on her first application, we remanded the case to allow Armey the opportunity to address this issue.
Armey v. State, Alaska App. Memorandum Opinion and Judgment No. 5106 at 2 (Aug. 23, 2006), 2006 WL 2458567 at *1.
Id. at 6, 2006 WL 2458567 at *3.
On remand, Superior Court Judge Douglas L. Blankenship concluded that Armey had not established a prima facie case that she had filed her first PCR application before the statute of limitations ran and had not set out an adequate reason for filing after the statute of limitations ran. He also concluded that Armey had not shown she was entitled to a new trial based upon newly discovered evidence. We conclude that Judge Blankenship erred in finding that Armey did not establish a prima facie case that she had filed within the statute of limitations. But we affirm his decision that Armey did not establish a prima facie case that she was entitled to a new trial based upon newly discovered evidence.
Factual and procedural background
A jury convicted Armey of first-degree murder, kidnapping, first-degree robbery, second-degree murder, and two counts of third-degree controlled substance misconduct. Her case was appealed by her trial counsel, Dick Madson, and in 1989, this court affirmed her murder, robbery, and kidnapping convictions and 99-year sentence, but vacated the convictions for controlled substance misconduct.
Mathis v. State, 778 P.2d 1161, 1163 (Alaska App. 1989). Armey was known as Donna Mathis during her trial and direct appeal.
Id. at 1169.
In 1995, the Alaska Legislature passed a statute of limitations for the filing of a PCR application. Under AS 12.72.020(a)(3)(A), an initial PCR application must be filed within two years of the entry of judgment of conviction or, if the conviction is appealed, within one year of the final judgment on appeal. But the legislature provided that "a person whose conviction was entered before July 1, 1994, has until July 1, 1996 to file a claim under AS 12.72." Armey's first PCR application
Ch. 79, § 9, SLA 1995.
Ch. 79, § 40, SLA 1995.
On March 31, 1998, a year and nine months after the statutorily authorized deadline, Armey filed a pro se PCR application, claiming ineffective assistance of counsel and that new evidence was available in her case. Seven days later, on April 6, 1998, pretrial services assigned James Hackett to represent Armey. On July 27, 1998, Assistant District Attorney Scott L. Mattern filed a motion to dismiss Armey's PCR application and submitted an accompanying memorandum. In his memorandum, Mattern argued, among other things, that Armey's application was untimely. On September 29, 1998, Hackett filed an opposition to the State's motion to dismiss. With regards to Armey's ineffective assistance of trial counsel claim, Hackett informed the trial court that Armey's pro se application was "cryptic regarding any particulars relating to Mr. Madson's alleged ineffective assistance." He therefore suggested to the court that it "may well wish" to issue a notice of intent to dismiss this aspect of Armey's pro se application.
With regards to Armey's second claim, that her conviction was secured with perjured trial testimony, Hackett argued that Armey's application was not time barred because she "[had] shown due diligence in coming forward with Mr. [Clyde] Denbo's recanting affidavit." While acknowledging that AS 12.72.020 requires more than due diligence to excuse a late-filed petition, Hackett did not attempt to argue that Armey satisfied the other requirements. Instead, Hackett chose to argue that Armey "need not satisfy the statutory requirements of AS 12.72.020(b)(2)" because it was unconstitutional on its face and as applied.
In its reply, the State argued that Armey knew before trial that Denbo was attempting to limit his own culpability in the crime by implicating her. The State argued:
[Armey] had ample opportunity to develop this information and she failed to do so. Armey has not advanced even a shred of evidence to support her nearly ten year delay in coming forth with this supposedly new evidence. The court can conclude that she did not use reasonable diligence in pursuing this information.
Furthermore, the State argued that even if the court found the evidence to be newly discovered and found Armey to have used due diligence and that the evidence was not cumulative or impeaching, she was still not entitled to a new trial because nothing that she presented to the court in her PCR application would probably produce an acquittal.
On January 6, 1999, Judge Pengilly dismissed Armey's first application. Armey did not appeal.
Armey's second PCR application
Almost five years later, on August 25, 2003, Armey filed a second PCR application in which she argued, among other things, that Hackett was ineffective in representing her during her first PCR application. She asserted that "Hackett failed to do any investigation into the merits of the application, to the extent it claimed ineffective assistance on the part of trial counsel, and had he done so, he would have discovered that the claims had merit, and he would not have conceded those claims." On December 5, 2003, the State filed a motion to dismiss arguing, among other things, that (1) Armey set forth no evidence to show that Hackett ineffectively represented her in litigating her first application, and (2) that even if ineffectiveness was established, Armey could not show prejudice because her first PCR application was not timely filed. The State argued that Armey's "claims of ineffective assistance of counsel were barred by her delay in filing her first petition." The State also asserted that her second PCR application was untimely and not pursued with diligence and that her first PCR application raised claims that could have been raised in her direct appeal.
In attempting to figure out who would represent Armey and file an opposition brief, Judge Pengilly ordered the Office of Public Advocacy to represent her. In this order, Judge Pengilly noted: "[Armey] filed a timely Petition for Post-Conviction Relief on March 31, 1998, which was dismissed on January 6, 1999." (emphasis added).
See Grinols v. State, 10 P.3d 600, 624 (Alaska App. 2000) (authorizing court to appoint counsel for applicant if court concludes that attorney's assistance is needed for fair and meaningful litigation of applicant's claim), aff'd in part, 74 P.3d 889 (Alaska 2003).
Assistant Public Advocate David K. Allen was assigned to represent Armey in her second application. Armey's opposition brief was due on January 30, 2004. On March 2, 2004, Judge Pengilly held a status hearing to ask counsel why an opposition had not yet been filed. Allen asked for, and received, ninety days to research the "two issues" in dispute: (1) the merits of Armey's ineffective assistance of counsel claim against Hackett, and (2) the due diligence claim in having waited four years to file a second PCR application after the first PCR application was dismissed. There was no mention by Allen, Judge Pengilly, or Assistant Attorney General Mattern regarding the State's claim that Armey's first PCR application was untimely (the one that Judge Pengilly had stated was timely in his order).
Ninety days later, on June 2, Allen told Judge Pengilly that he could not file an opposition regarding Armey's diligence in pursuing her second application because Armey had made representation unreasonably difficult. Instead, Allen indicated that he intended to file a motion to withdraw as counsel. In his affidavit in support of his motion to withdraw, Allen set forth his "working hypothesis" that Armey did exercise due diligence in filing her second PCR application. Allen stated that soon after the dismissal of her first PCR application, Armey retained Marcus Paine to file a second PCR application. Allen represented that Paine neglected the matter. Armey next hired C. R.
Kennelly to pursue her second PCR application. Allen spoke to Kennelly and concluded that Kennelly's representation of Armey "is suggestive of malpractice" and that Armey exercised due diligence in pursuing her claim during the time that Kennelly represented her.
On June 15, Judge Pengilly granted Allen's motion to withdraw from representing Armey. The same day, Judge Pengilly granted the State's motion to dismiss the second PCR application.
In a letter dated June 23, but filed with the court on July 8, 2004, Armey asked Judge Pengilly who would be representing her and assisting her in submitting a response to the State's motion to dismiss. On August 18, Judge Pengilly wrote a letter of response in which he noted that Armey was not entitled to the appointment of a second attorney at public expense. Judge Pengilly indicated in his letter that Armey could "represent [herself] or . . . retain a private attorney to represent [her] in any further proceedings that may occur." The judge did not inform Armey that he had already granted the State's motion to dismiss two months earlier.
Armey's appeal of Judge Pengilly's dismissal
Armey appealed Judge Pengilly's dismissal of her second PCR application. In an unpublished decision, we noted that the State had filed a motion to dismiss Armey's second PCR application on the ground that Armey's first PCR application was time barred. We noted that in her appeal Armey made no claim that would excuse her failure to file the first PCR application before the statute of limitations expired. But because we determined that Armey had "not been given the opportunity to address this issue," we concluded that the case must be remanded. Proceedings on remand
Armey, Alaska App. Memorandum Opinion and Judgment No. 5106 at 3, 2006 WL 2458567 at *1.
Id. at 6, 2006 WL 2458567 at *3.
Id.
On remand, Armey's current attorney, Ronald A. Offret, argued that "[a]fter her appeal was decided, Appellant Armey persistently but unsuccessfully tried to get a PCR application filed with the Court. Those efforts are fully set out in her Affidavit filed in support of this memorandum." Armey argued that (1) Judge Pengilly's order declaring the first PCR to have been "timely" stands as a res judicata finding on the issue of timeliness; (2) Armey was physically prevented by the Alaska Department of Corrections from filing a timely PCR application; (3) Armey had no access to Alaska legal materials at her out-of-state prison libraries; (4) Armey was diligent in her efforts to file her first PCR; (5) the Department of Corrections's failure to notify Armey of the time limitation for filing deprived her of her due process rights and the limitation was applied retroactively; and (6) newly discovered evidence excused the late filing under AS 12.72.020(b)(2).
With regards to her diligence, Armey's attorney argued that there is admissible evidence to show she filed her first pro se PCR application in March or April of 1996 (before the statute of limitations deadline). Also regarding her due diligence in filing her first application, Armey's affidavit stated that after her direct appeal was decided, her trial attorney, Dick Madson, told her that he would prepare a PCR application for her. At some point in the early 1990s, she discovered that Madson would not file a PCR application for her. Then, while in prison in Minnesota (where the Alaska Department of Corrections had transferred Armey), she contacted Southern Minnesota Regional Legal Services, Inc. (SMRLS). On July 21, 1993, Paul Onkka (presumably an attorney with SMRLS) wrote to Armey on SMRLS letterhead and apologized for his "tardiness" in responding to her letter. In this letter, Onkka stated that he had phoned Tim Mulrooney (presumably another Minnesota attorney working on Armey's case) regarding his work for Armey. According to Onkka, when Mulrooney found out that Armey had been transferred out of Minnesota "he also pretty much abandoned his work on [Armey's] case." Armey also asserted in her affidavit that, after a year of illness, she was diagnosed with a tumor on her ovary in 1992, but that she did not receive surgery until she had a seizure in 1993 that led to kidney failure and pulmonary edema.
Sometime in 1993, an attorney friend of Armey's wrote letters to several people regarding Armey's lack of medical services and inability to file a PCR application, including "the Director of Alaska Lawyer's Pro Bono program, the AkCLU, Alaska Legal Services, Jim McComas and multiple lawyers listed in the Todds' Attorney's Directory."
At some point after her surgery at the LDS hospital in Salt Lake City, Armey was transferred back to Anchorage to the 6th Avenue Jail. While there, Armey asserted that jail officials denied her access to her personal property and her legal materials.
Later in 1993, Armey was transferred to the Lemon Creek Correctional facility, where she again became very ill and was hospitalized for two weeks at Bartlett Hospital. Armey also swears in her affidavit that, in 1994, she retained Juneau attorney Vance Sanders to file a PCR application for her. Sanders never informed Armey of the new statute of limitations law when it was passed in 1995. Armey continued to believe that Sanders would file her PCR application until the beginning of 1996, when she became so frustrated with Sanders that she began to look into hiring another attorney and filing a grievance against Sanders. In March or April of 1996, she was transferred to the Anvil Mountain Correctional Center in Nome. While in Nome, she was again denied access to her personal property and legal documents. However, she was able to find a form-PCR application in the law library, which she filled out and mailed to the Anchorage court. Armey asserts that she never received a reply from the court, nor has the court ever been able to find a copy of her application.
Armey asserts many additional facts regarding her attempt to file her first PCR application, but they are all after July 1, 1996 (the deadline set by the legislature). While they do not prove her diligence prior to the July 1, 1996 deadline, they do tend to corroborate her earlier efforts.
In his decision on remand, Judge Blankenship concluded that Armey had not shown that she had filed her first application within the statute of limitations, that she had not advanced an adequate ground for her failure to file a timely application, and that she had not shown that she was entitled to a new trial based upon newly discovered evidence.
Why we conclude that Judge Blankenship erred in finding that Armey failed to establish a prima facie case that she had filed within the statute of limitations
First, we agree with Judge Blankenship that Judge Pengilly's statement in his December 2003 order that Armey "filed a timely Petition for Post-Conviction Relief on March 31, 1998" was not a ruling that Armey's first application was timely filed. It appears that this statement was made in passing by Judge Pengilly in an order dismissing Armey's application on other grounds. Judge Pengilly made this ruling nearly four years after he dismissed Armey's first application. It does not appear from the record that Judge Pengilly intended this statement to be a ruling on this issue. We accordingly conclude that Judge Blankenship did not err in rejecting Armey's contention that he could not reopen this issue because of the doctrine of res judicata.
On appeal, Armey argues that her first PCR application was filed prior to the statute of limitations. Because Armey's conviction was prior to 1994, she had until July 1, 1996, to file her PCR application. She asserts that while this court and Judge Blankenship both regard March 31, 1998, as the date that her first PCR application was filed, Armey presented evidence in her affidavit to the superior court that she actually filed a PCR application in the Spring of 1996, before the July 1, 1996, deadline.
Ch. 79, § 40, SLA 1995 ("[A] person whose conviction was entered before July 1, 1994, has until July 1, 1996, to file a claim under AS 12.72.").
The State, in its motion to the trial court, did not contest the fact that Armey mailed a PCR application in March or April of 1996. The State merely argued that Armey did not provide any clear and convincing evidence that would support any exception to excuse her untimely filing of the 1998 application. Under the first of these exceptions — set out in AS 12.72.020(b)(1) — the court may hear a late-filed claim:
See AS 12.72.020(b) (delineating the exceptions to the statute of limitations for filing a PCR application).
(b)(1) if the applicant establishes due diligence in presenting the claim and sets out facts supported by admissible evidence establishing that the applicant
(A) suffered from a physical disability or from a mental disease or defect that precluded the timely assertion of the claim; or
(B) was physically prevented by an agent of the state from filing a timely claim
Therefore, under AS 12.72.020(b)(1), a claimant must (1) establish due diligence, and (2) set out facts supported by admissible evidence that establish either that the applicant suffered from a physical disability or mental disease or defect that precluded the timely filing of the claim or that the applicant was physically prevented by an agent of the state from filing a timely claim. Armey's argument, however, is that she does not need to meet this exception because she mailed PCR paperwork prior to the statute of limitations.
In a motion to reconsider Judge Blankenship's February 12, 2007, ruling that Armey's first PCR application was untimely, Armey submitted the affidavit of her husband. The affidavit supports Armey's assertion that she filed the application prior to the statute of limitations but that the court lost it. Douglas Armey stated in his affidavit that at some point prior to May 31, 1996, he phoned the courthouse in Anchorage to inquire about the status of Donna Armey's PCR application. Douglas Armey stated that a clerk at the court informed him that Donna Armey's PCR application had been received but that there were some problems with the application. He states that the clerk did not indicate that the application was fatally flawed or that it would not be processed.
A judge may grant summary disposition of an application for post-conviction relief when there are no genuine issues of material fact that are in dispute — that is, when, under the undisputed facts of the case, the moving party is entitled to judgment as a matter of law. In other words, Judge Blankenship could rule against Armey only if he concluded that, accepting Armey's allegations as true, Armey would not be entitled to prevail. If we accept Armey's allegations as true, we conclude that Armey established that she filed within the statute of limitations.
State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988).
In her affidavit, Armey alleges that she mailed her application to the court prior to the expiration of the statute of limitations. In his affidavit, Douglas Armey alleges that he confirmed that the court had actually received the application prior to the expiration of the statute of limitations. In addition, Armey's claim that she filed within the statute of limitations is supported to some degree by her history of other attempts to file.
In his order, Judge Blankenship states that "the fact that any PCR application is lost or unrecorded does not excuse an untimely application under the exceptions in [the Alaska Statutes]." But if Armey can prove that she filed an application for post-conviction relief before the statute of limitations expired and the court system lost the application, it appears fundamentally unfair to conclude that she is not entitled to relief. W e note that in Collins v. Arctic Builders, Inc., a worker's compensation case, Arctic Builders argued that Collins's claim was barred by the statute of limitations. In response, Collins advanced a factual claim: that he timely attempted to file his claim but that the clerk of the workers' compensation office told him to file somewhere else and that somehow his application "got lost in the shuffle." The Alaska Supreme Court determined that specific factual findings on these allegations were necessary because "it could be interpreted as sufficient to avoid the bar of the statute of limitations or because the clerk's alleged statement that Collins should not file with the state workers' compensation board might be a form of estoppel, preventing reliance on the statute of limitations to dismiss Collins's claim." Therefore, the supreme court remanded for a factual determination of Collins's alleged attempted filing. Admittedly, this is a different context, but it does show that the Alaska Supreme Court was willing to allow a claimant to avoid the statute of limitations if he could show that his failure to file within the statute was the fault of the State.
31 P.3d 1286 (Alaska 2001).
Id. at 1289.
Id.
Id. at 1290.
Id. at 1291.
We conclude that other than her claim that she did timely file an application for post-conviction relief with the court system in the Spring of 1996, Armey has not established a prima facie case that she was prevented from filing. Since Armey alleges that she actually did file an application within the statute of limitations, this claim is inconsistent with the claim that she was prevented from filing. Furthermore, Armey has not presented a prima facie case that she failed to file because she received ineffective assistance of counsel from the attorneys she claims should have filed an application on her behalf prior to the expiration of the statute of limitations. To establish a claim that an attorney was ineffective for failing to file, Armey was required to file an affidavit from the attorney or explain why such an affidavit could not be filed to establish a prima facie case.
State v. Jones, 759 P.2d 558, 570-71 (Alaska App. 1988).
Why we conclude that Judge Blankenship did not err in dismissing Armey's newly discovered evidence claim
Alaska Statute 12.72.020(b)(2) allows for a post-conviction relief application based upon newly discovered evidence, notwithstanding the statute of limitations, if certain factors are met:
(b)(2) . . . if the applicant establishes due diligence in presenting the claim and sets out facts supported by evidence that is admissible and
(A) was not known within
(i) two years after entry of the judgment of conviction if the claim relates to a conviction;
. . .
(B) is not cumulative to the evidence presented at trial;
(C) is not impeachment evidence; and
(D) establishes by clear and convincing evidence that the applicant is innocent.
The statute requires, therefore, not only due diligence, but also that the applicant set forth facts supported by admissible evidence meeting all four factors. Judge Blankenship found that Armey did not show (1) that Clyde Denbo's affidavit would prove by clear and convincing evidence that Armey was innocent, or (2) that Denbo's testimony would not be impeachment evidence.
Armey argues on appeal that this evidence is not merely cumulative or impeaching and that it is material to the issue of guilt and probably would have produced an acquittal at trial. Armey failed to set out facts in the trial court that the evidence would not be impeachment evidence, and she failed to set out facts that the affidavit establishes by clear and convincing evidence that she is innocent. Armey made no arguments to the trial court on this matter. Therefore, Judge Blankenship did not err in finding that Armey did not satisfy her burden under AS 12.72.020(b)(2).
Why we conclude that Judge Pengilly erred in dismissing Armey's second application
After Armey filed her second application, Judge Pengilly concluded that she needed a lawyer's assistance to present her claim. Allen was appointed to represent Armey. He appeared before Judge Pengilly on two separate occasions regarding his representation of Armey: March 2, 2004, and June 2, 2004. At the March 2 status hearing, Allen indicated that he wanted to bifurcate the "two issues" in dispute: (1) whether Armey's second PCR application was timely, and (2) the merits of her ineffective assistance claims against her prior attorneys. Allen requested ninety days to respond to the State's motion to dismiss. After ninety days, however, Allen did not submit an opposition. Instead, at a hearing that Armey was not present for, Allen indicated that he planned to file a motion to withdraw as counsel. Two days later, Allen submitted his written motion to withdraw from representation based on the ground that "continued representation has been rendered unreasonably difficult by the client." On June 15, Judge Pengilly granted the order allowing Allen to withdraw and granted the State's motion to dismiss the petition for post-conviction relief.
See Grinols v. State, 10 P.3d 600, 624 (Alaska App. 2000) (authorizing court to appoint counsel for applicant if court concludes that attorney's assistance is needed for fair and meaningful litigation of applicant's claim), aff'd in part, 74 P.3d 889 (Alaska 2003).
Therefore, after having originally decided that Army needed a court-appointed attorney to represent her in presenting her claim, Judge Pengilly allowed Armey's counsel to withdraw and dismissed her claim without making any findings. Based on these facts, we conclude that Judge Pengilly erred in dismissing Armey's second application.
Conclusion
We conclude that Judge Blankenship did not err in dismissing Armey's claim that was based upon newly discovered evidence. But we conclude that Armey did set out a prima facie case that she filed her first application for post-conviction relief with the court prior to the expiration of the statute of limitations. Assuming that Armey can ultimately prove that she did file a timely application, and if she can show that her 2003 application was also timely, it appears that she has one layered claim of ineffective assistance of counsel remaining. Her claim is that Mr. Hackett provided her with ineffective assistance of counsel in the application she filed in 1998 because he was ineffective in presenting the claim that her trial counsel, Dick Madson, provided her with ineffective assistance at her trial.
The judgment of the superior court is REVERSED. The case is REMANDED.