Opinion
A-13912
06-26-2024
WILLIAM TERRY SMITH, Appellant, v. STATE OF ALASKA, Appellee.
George W.P. Madeira Jr., Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Second Judicial District, Utqiagvik, Nelson Traverso, Judge. Trial Court No. 2KB-17-00060 CI
Appearances:
George W.P. Madeira Jr., Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, Judge.
In 1986, William Terry Smith pleaded no contest to first-degree sexual assault. Twenty-nine years later, in September 2015, the United States Department of Justice sent Smith a letter informing him that it had reviewed his case as part of a nationwide review of cases involving the use of microscopic hair comparison analysis. The letter explained that the FBI hair analysis report in Smith's case had "exceeded the limits of the science" when it stated that a pubic hair found on a condom collected at the scene was "consistent with having originated from [Smith]."
Former AS 11.41.410(a)(1) (1985).
Smith filed an application for post-conviction relief asserting that he would not have pleaded no contest if he had been aware of this information - i.e., if he had been aware that the microscopic hair comparison analysis exceeded the limits of science. Smith's application did not assert that he had not committed the crime or that he probably would have been acquitted at a trial. Instead, he argued that it was sufficient for him to allege that the hair analysis was flawed and that he would not have entered a no contest plea if he had been aware of those flaws.
The superior court rejected this argument, concluding that because Smith's application was untimely, he was required to allege that he was "innocent" under AS 12.72.020(b)(2)(D), and that "Smith's assertion that he would not have entered a no contest plea" does "not [meet] this burden."
For the reasons explained in this decision, we affirm the judgment of the superior court.
Background facts
In 1985, Smith was charged with first-degree sexual assault and first-degree burglary for sexually assaulting a sixty-nine-year-old woman in her home. As part of its investigation into the case, the police discovered a pubic hair on a condom collected at the scene. The State sent the hair to an FBI laboratory for investigation. The resulting FBI report stated:
A pubic hair which exhibits the same microscopic characteristics as [Smith's pubic hairs] was found on the [condom taken from the scene] and is consistent with having originated from the suspect, WILLIAM T. SMITH.
It is noted that hair comparisons do not constitute a basis for absolute personal identification.
A few months after the lab report was issued, Smith pleaded no contest, pursuant to a plea agreement, to one count of first-degree sexual assault. He was sentenced to 8 years to serve.
In the years that followed, courts, commentators, and scientists criticized the use of hair comparison analysis and called into question both the scientific validity of the techniques employed and the certainty with which forensic examiners expressed their conclusions. These criticisms ultimately prompted the United States Department of Justice to review state and federal cases involving the use of hair comparison analysis conducted by the FBI.
David H. Kaye, Ultracrepidarianism in Forensic Science: The Hair Evidence Debacle, 72 Wash. & Lee L. Rev. 227, 228-231 (2015).
Id.
As part of this review, the Department of Justice sent Smith a letter in September 2015. In relevant part, the letter stated: "[T]he examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair association." The letter further stated, "[T]his type of testimony exceeded the limits of the science."
We note that the original FBI report stated only that the pubic hair was "consistent with having originated from the suspect." It is therefore unclear why the Department of Justice concluded that the examiner had "assigned to the positive association a statistical weight," "provided a likelihood that the questioned hair originated from a particular source," or provided "an opinion as to the likelihood or rareness of the positive association."
It is unclear from the record precisely when Smith received the letter, but approximately eighteen months later, in April 2017, Smith filed a pro se application for post-conviction relief based on the letter he received from the Department of Justice. An attorney was appointed to represent Smith on his application, and the attorney filed an amended application. The superior court ultimately dismissed Smith's claim for failure to state a prima facie case for relief, and Smith now appeals that ruling.
Why we affirm the superior court's dismissal of Smith's application for post-conviction relief
Smith argues on appeal that the superior court erred when it dismissed his application. For the reasons we are about to explain, we reject this argument and affirm the judgment of the superior court.
Whether a defendant's application for post-conviction relief sets forth a prima facie case for relief is a question of law that we review de novo. To establish a prima facie case, a post-conviction relief applicant must "present the superior court with well-pleaded assertions of fact which, if ultimately proved, would be sufficient to establish his entitlement to relief."
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
Wyatt v. State, 393 P.3d 442, 445 (Alaska App. 2017) (emphasis omitted).
Here, Smith's application was untimely, which means he was required to present the court with well-pleaded assertions of fact that, if proven, would establish both a valid claim of relief and an exception to the timeliness requirement. As to his underlying claim for relief, Smith was required to show that he was entitled to relief under AS 12.72.010, the Alaska statute setting out the circumstances in which a defendant is entitled to post-conviction relief. In his amended application, Smith argued that he was entitled to relief under both subsections (4) and (8) of AS 12.72.010, and for essentially the same reason: because he would not have pleaded no contest if he had been aware that the hair analysis report prepared by the FBI had exceeded the limits of science.
AS 12.72.020(a)(3)(A), (b)(2).
AS 12.72.010(4) (providing that a defendant may obtain post-conviction relief if "there exists evidence of material facts, not previously presented and heard by the court, that requires vacation of the conviction or sentence in the interest of justice"); AS 12.72.010(8) (providing that a defendant may obtain post-conviction relief if "after the imposition of sentence, the applicant seeks to withdraw a plea of guilty or nolo contendere in order to correct manifest injustice").
Because Smith's claim was filed more than thirty years after he was sentenced, he was also required to show an exception to the requirement that applications for post-conviction relief be filed within eighteen months of the entry of the judgment of conviction. In his amended application, Smith argued that he satisfied the exception to the timeliness requirement articulated in AS 12.72.020(b)(2). That statute provides that a court may hear an otherwise untimely claim for post-conviction relief if certain requirements are met. Among other requirements, the applicant must demonstrate that: (1) the claim is based on newly discovered evidence; (2) the applicant exercised due diligence in presenting the claim; and (3) there is "clear and convincing evidence that the applicant is innocent."
AS 12.72.020(a)(3)(A).
AS 12.72.020(b)(2)(A)-(D).
In his amended application, however, Smith asserted only that his claim was based on newly discovered evidence and that he had acted diligently in presenting his claim by filing it within eighteen months of receipt of the FBI letter - that is, he alleged that he satisfied the first two requirements noted above. But Smith's amended application entirely failed to address the third requirement necessary to show that his application satisfied the exception to the timeliness requirement: that he establish by clear and convincing evidence that he is "innocent." Smith's application also failed to discuss or acknowledge any other evidence in the case against him.
The State moved to dismiss Smith's application on various grounds. Of particular relevance to this appeal, the State noted that Smith's application "is devoid of a statement suggesting innocence," "does not contain the word 'innocent,'" and does not "cite the statutory requirements of a post-conviction relief claim based on newly discovered evidence."
Smith opposed the State's motion to dismiss. In responding to the State's argument that his application failed to discuss the requirement that he establish that he is "innocent" by clear and convincing evidence, Smith asserted that "innocent," as used in AS 12.72.020(b)(2) means that a new trial "would probably produce an acquittal." But in the paragraphs that followed this assertion, Smith never claimed that a new trial would, in fact, probably produce an acquittal. Instead, he seemed to assert that he was entitled to relief because it would "be a fundamental miscarriage of justice for a criminal defendant to rely upon erroneous forensic expert analysis when [deciding whether to plead guilty or no contest]."
In response, the State again noted that Smith had failed to address the question of innocence and instead was claiming that he was entitled to relief solely because he would not have accepted a plea offer if he had known that the FBI hair analysis exceeded the limits of science.
At oral argument before the superior court, Smith's attorney further clarified that Smith was not arguing that a new trial would probably produce an acquittal, and instead was arguing that he was entitled to relief because he would not have entered a no contest plea if he had been aware of the problems with the FBI hair analysis. Smith's attorney stated, "I'm not here to say Mr. Smith would have won [at trial] .... I'm not here to say Mr. Smith would have lost .... It doesn't matter; we never got there because he waived those rights."
The superior court dismissed Smith's motion in a written order. The court explained that Alaska law required Smith to establish proof of innocence by clear and convincing evidence, and that "Smith's assertion that he would not have entered a no contest plea had he known the FBI's lab report was flawed is not the standard this [c]ourt must apply." The superior court therefore found that Smith had failed to present a prima facie case for relief.
We see no error in the superior court's ruling. As we have explained, Smith himself acknowledged that he was required to prove his innocence, and he contended that this meant he was required to prove that a new trial "would probably produce an acquittal." As this Court discussed in Clayton v. State, the precise meaning of the term "innocent" in AS 12.72.020(b)(2) has not yet been resolved. But even under Smith's chosen definition of the term, he not only failed to allege specific facts that would satisfy his definition, he failed to make even a conclusory allegation on this point.
Clayton v. State, 535 P.3d 909, 917-18 (Alaska App. 2023).
Instead, Smith ultimately argued that he was only required to allege that he would not have pleaded no contest. We agree with the superior court that whatever the word "innocent" means, it certainly requires more than the assertion that the defendant would not have pleaded no contest. We therefore agree with the superior court that Smith failed to establish a prima facie case for post-conviction relief.
On appeal, Smith raises various challenges to the superior court's ruling, but none of them are availing. First, Smith argues that the superior court erred when it required him to prove his innocence by "clear and convincing" evidence in order to survive a motion to dismiss. As we have just explained, however, the primary problem with Smith's application was not the quantity or quality of evidence, but his failure to present any argument that a new trial would likely produce an acquittal (assuming this standard applies). Under these circumstances, even if the superior court should have applied a lower burden of proof (an issue we need not decide), it is clear Smith still would have failed to plead a prima facie case for relief.
Next, Smith argues that by alleging that the FBI hair analysis was flawed, and that he would not have pleaded no contest if he had been aware of this flaw, he established a prima facie case that a new trial would probably produce an acquittal. This argument, however, directly contradicts his attorney's assertion in the superior court that Smith was not required to show that a new trial would probably produce an acquittal. Furthermore, this argument is not persuasive. Smith's minimal allegations that the FBI analysis was flawed and that he would not have pleaded no contest are insufficient to establish a prima facie case that a new trial would probably produce an acquittal.
Finally, Smith asserts he has a due process right to bring his application under Napue v. Illinois. But, among other problems with this argument, a litigant seeking relief under Napue must establish that the State knowingly used false evidence, and Smith admits he never made that allegation in the superior court. Smith's reliance on Napue is therefore misplaced.
Napue v. Illinois, 360 U.S. 264, 269 (1959).
Id.
Smith asserts that that we should remand his application for further proceedings so he can develop his Napue claim. But a litigant who fails to raise a claim in the postconviction proceedings usually cannot raise that issue for the first time on appeal, and Smith has not identified any exception to this rule that applies to his case. See Burton v. State, 180 P.3d 964, 975 (Alaska App. 2008).
Conclusion
The judgment of the superior court is AFFIRMED.