Opinion
Court of Appeals No. A-12438 No. 6656
07-25-2018
GREGORY D. CURTIS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4FA-14-2026 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Bethany S. Harbison, Judge. Appearances: Jane B. Martinez, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). --------
On February 15, 2008, Gregory D. Curtis pleaded no contest to felony driving under the influence, after consulting with his court-appointed attorney from the Public Defender Agency. Four months later, Curtis was sentenced to a term of 4½ years to serve.
On May 29, 2014 — i.e., nearly six years after he was sentenced — Curtis filed a petition for post-conviction relief. In this petition, Curtis alleged that, before he was sentenced, he asked his attorney to file a motion to withdraw Curtis's no contest plea, but his attorney failed to do so. Curtis also alleged that no one informed him that, because prisoners in Alaska are entitled to good time credit against their sentences, Curtis's sentence of 4½ years to serve would most likely entail a shorter period of imprisonment, followed by release on mandatory parole. Curtis asserted that he had never wanted to spend time on parole, and that he would not have entered his plea if he had known this.
The immediate hurdle to Curtis's petition for post-conviction relief is that it was filed well after the pertinent statute of limitations expired. Under the then-existing version of AS 12.72.020(a)(3), Curtis had two years from the entry of his conviction to file a petition for post-conviction relief. This limitation period expired in June 2010. As we have explained, Curtis's petition was not filed until the end of May 2014 — nearly six years after the entry of his conviction, and nearly four years after the statute of limitations expired.
Recognizing that his petition was apparently untimely, Curtis asserted that, despite the delay, he had diligently pursued post-conviction remedies, and he asked the superior court to hold a hearing on this matter.
The State opposed Curtis's request for a hearing, primarily on the basis that Curtis had failed to allege any facts that would justify his failure to seek post-conviction relief until nearly six years after his conviction.
The superior court denied Curtis's request for a hearing without comment, apparently agreeing with the State that Curtis had failed to allege facts that would justify a hearing. The court then dismissed Curtis's petition as untimely.
Curtis now appeals the superior court's decision to dismiss his petition for post-conviction relief without holding a hearing to see if he might qualify for equitable tolling of the limitations period.
The State disputes whether the doctrine of equitable tolling applies to post-conviction relief litigation. But even assuming that an applicant for post-conviction relief could invoke the doctrine of equitable tolling, we agree with the superior court that Curtis failed to allege facts that would support a finding of equitable tolling to excuse his four-year delay in filing his petition.
According to the record, Curtis seemingly discovered before his sentencing that he would be subject to mandatory parole after serving a portion of his sentence. This appears to be the reason Curtis asked his attorney to file a motion to withdraw the plea. Yet Curtis did not file his petition for post-conviction relief until six years after his sentencing.
Even if we assume that Curtis failed to understand that he would be released on parole until he actually was released on parole in April 2012, Curtis offered no explanation for why he waited an additional two years after being paroled — i.e., until May 2014 — to seek post-conviction relief.
Instead, Curtis offered vague, non-specific claims that he "had numerous questions with respect to his case that were never answered by [his] counsel", that he "began attempts to withdraw his plea prior to his sentencing hearing", and that he "continued to attempt to address these issues [following his] release".
Given Curtis's failure to offer specific facts that might explain and excuse his long delay in seeking post-conviction relief, the superior court was not obliged to hold an evidentiary hearing.
See Richardson v. Anchorage, 360 P.3d 79, 91 (Alaska 2015), a case in which the plaintiff claimed that his lawsuit fell within various exceptions to the statute of limitations. The supreme court concluded that the trial court was not required to hold an evidentiary hearing on several of these purported exceptions, because the plaintiff failed to raise a genuine issue of material fact pertaining to these exceptions. See also Limeres v. Limeres, 367 P.3d 683, 687 (Alaska 2016), where the court reiterated that a hearing is not required when there is "no genuine issue of material fact", and where the court declared that "a party's 'bare claim,' even in a sworn affidavit, does not create a dispute of material fact."
Accordingly, we AFFIRM the judgement of the superior court.