MANNHEIMER

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.

MEMORANDUM OPINION

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.

Appearances: Loren J. Larson Jr., in propria persona, Seward, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.

Judge MANNHEIMER.

Loren J. Larson Jr. appeals the superior court's dismissal of his petition for writ of habeas corpus.

In 1998, a jury convicted Larson of two counts of first-degree murder and one count of first-degree burglary. He received a composite sentence of 198 years' imprisonment. In 2000, this Court affirmed Larson's convictions on direct appeal. See Larson v. State (Larson I), unpublished, Alaska App. Memorandum Opinion No. 4171, 2000 WL 19199 (January 12, 2000).

About a year later, Larson filed an application for post-conviction relief, relying on affidavits from jurors and alternate jurors which alleged that there had been juror misconduct prior to and during the deliberations in his trial. The superior court dismissed Larson's petition for post-conviction relief, and this Court affirmed the superior court's decision on appeal. Larson v. State (Larson II), 79 P.3d 650 (Alaska App. 2003).

(Larson later filed other lawsuits attacking his convictions, but for present purposes it is not necessary to recount the history of that litigation.)

In the habeas corpus petition that is the subject of the present litigation, Larson presented a claim of juror misconduct. Specifically, Larson asserted that two of the jurors in his case lied to his attorney during voir dire by falsely declaring that they were willing to follow the precept that no adverse inference should be drawn from a defendant's failure to take the stand. According to Larson's petition, these jurors "lied to ... conceal a deep[-]rooted bias they held against [him] if he did not testify in his own defense."

Larson then argued that, because these two jurors were not truly impartial, his case was not decided by a valid jury of twelve impartial persons — and that "the deprivation of [the right to] an impartial jury deprives the court of jurisdiction." Thus, Larson concluded, the criminal judgement issued against him was void.

The superior court dismissed Larson's habeas corpus petition, but the court did not reach the merits of Larson's juror misconduct claim. Rather, the superior court dismissed Larson's petition on procedural grounds.

Alaska Civil Rule 86 governs petitions for writs of habeas corpus. Subsection (m) of this rule states that a habeas corpus petition must be treated as a petition for post-conviction relief if the petitioner is presenting a claim that falls within the post-conviction relief act, AS 12.72.010 et seq.

Relying on Civil Rule 86(m), the superior court dismissed Larson's habeas corpus petition and told Larson that, if he wished to pursue his claim of juror misconduct, he had to file a new petition for post-conviction relief.

Larson now appeals the superior court's decision, arguing that the court should have allowed him to pursue his claim under the rubric of habeas corpus.

As explained in this opinion, we hold that the superior court was correct in applying Civil Rule 86(m) to Larson's habeas corpus petition. The relief that Larson is seeking falls within the post-conviction relief act, so his lawsuit should be treated as a petition for post-conviction relief.

However, Civil Rule 86(m) did not authorize the superior court to dismiss Larson's lawsuit simply because Larson filed it as a petition for writ of habeas corpus. Instead, Rule 86(m) directed the court to treat Larson's lawsuit as a petition for post-conviction relief — and to conduct all further proceedings under the procedures specified in Criminal Rule 35.1 (the rule governing petitions for post-conviction relief).

We therefore vacate the superior court's dismissal of this lawsuit, and we direct the superior court to conduct further proceedings under Criminal Rule 35.1.

Why we uphold the superior court's application of Civil Rule 86(m) to Larson's petition for writ of habeas corpus

Under Alaska Civil Rule 86(m), post-conviction relief supersedes habeas corpus as the procedural method for collaterally attacking a criminal conviction. Civil Rule 86(m) declares that when a criminal defendant files a habeas corpus petition that raises claims that could be brought under the post-conviction relief act, "[t]he court shall treat [the habeas corpus] complaint as an application for post-conviction relief under Criminal Rule 35.1 and, if necessary, transfer the application to the court [having] appropriate jurisdiction for proceedings under that rule."

We upheld the constitutionality of Rule 86(m) in Grinols v. State, 10 P.3d 600, 623 (Alaska App. 2000), affirmed 74 P.3d 889 (Alaska 2003), and in Hertz v. State, 8 P.3d 1144, 1147-48 (Alaska App. 2000). In Hertz, we held that Civil Rule 86(m) applies even in circumstances where a defendant's petition for post-conviction relief would be untimely or would be procedurally barred for some other reason — so that treating the defendant's lawsuit as post-conviction relief litigation will effectively mean that the defendant will be denied relief. See Hertz, 8 P.3d at 1147-48.

Larson asserts that Civil Rule 86(m) does not apply to his case because, in his petition, he presents the claim that the criminal judgement against him is not merely attackable, but rather completely void. In support of this assertion, Larson relies on the concluding portion of our decision in Hertz:

Hertz maintains that he should be able to pursue his action in habeas corpus and avoid the impending statutory bars [to post-conviction relief litigation codified] in AS 12.72.020(a).
. . .
We agree with [the] general premise ... that a person held under a void judgment can seek redress in habeas corpus. We also recognize that AS 12.72.020(a) established explicit limitations on successive applications for post-conviction relief. Arguably, if a post-conviction relief applicant raised a claim that the underlying criminal judgment was void, a procedural bar under AS 12.72.020(a) might be unconstitutional.
But Hertz ... does not maintain that the superior court lacked personal or subject matter jurisdiction of his case nor [does he raise] any other claim that the superior court's judgment is otherwise void. ... Because Hertz's application [does] not claim that the underlying judgment was void, his claim that the superior court suspended the writ of habeas corpus by directing him to refile his complaint as an application for post-conviction relief is without merit.

Larson interprets this passage as saying that if a petition for writ of habeas corpus is based on a claim that the underlying criminal judgement is void, then the petition should be litigated under habeas corpus rather than post-conviction relief. But this is a misreading of the passage. Hertz says that the defendant's lawsuit should still be treated as a petition for post-conviction relief — but, because a claim of voidness can be raised in a petition for writ of habeas corpus (as defined at common law), it might be unconstitutional for a court to apply some or all of the restrictions codified in AS 12.72.020 to bar the defendant from litigating the voidness claim in a petition for post-conviction relief.

We express no opinion as to whether Larson's claim of juror misconduct, if proved, would indeed make Larson's criminal judgement void. Nor do we express any opinion as to whether, assuming Larson has raised a true voidness claim, it would be constitutionally improper for the superior court to apply the various restrictions on post-conviction relief litigation codified in AS 12.72.020. These matters are not ripe for review, because the superior court has made no ruling on these matters.

However, we do uphold the superior court's ruling that, because Larson's claim of juror misconduct falls within the scope of the post-conviction relief act, Larson's lawsuit must be treated as a petition for post-conviction relief rather than a petition for writ of habeas corpus.

Why we reverse the superior court's dismissal of Larson's lawsuit

As we explained earlier, the superior court (relying on Civil Rule 86(m)) dismissed Larson's habeas corpus petition and told Larson that, if he wished to pursue his claim of juror misconduct, he had to file a new petition for post-conviction relief.

The superior court's outright dismissal of Larson's habeas corpus petition was procedural error. Under Civil Rule 86(m), the superior court was not supposed to dismiss Larson's lawsuit; rather, the court was supposed to convert the lawsuit into a post-conviction relief action, and to conduct all further proceedings under Criminal Rule 35.1 (the post-conviction relief rule).

The State acknowledged at oral argument that the superior court departed from the procedure specified in Civil Rule 86(m). Nevertheless, the State asks us to affirm the superior court's dismissal of Larson's lawsuit on the grounds that (1) Larson's claim of juror misconduct is res judicata, and (2) even if Larson's claim of juror misconduct is correct, the type of juror misconduct alleged here would not render Larson's criminal judgement void.

But the superior court has made no ruling on these matters — nor any other ruling concerning the merits of Larson's claim or Larson's ability to pursue a petition for post-conviction relief. In essence, the State asks this Court to decide these matters in the first instance. We decline that invitation. Given the circumstances, the proper procedure is for us to remand Larson's case to the superior court for further litigation under the procedures specified in Criminal Rule 35.1.

Conclusion

Under Alaska law, Larson's lawsuit is properly treated as a petition for post-conviction relief, not a petition for writ of habeas corpus. However, the superior court's order dismissing Larson's lawsuit is VACATED, and this case is remanded to the superior court for further litigation of Larson's petition under Criminal Rule 35.1.

We do not retain jurisdiction of this case.