Opinion
Court of Appeals No. A-11030 Trial Court No. 3AN-09-9740 CI No. 5955
06-19-2013
MICHAEL D. BAILEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Sechelt, British Columbia, Canada, for the Appellant, and Kenneth M. Rosenstein, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge.
Appearances: David K. Allen, Sechelt, British Columbia, Canada, for the Appellant, and Kenneth M. Rosenstein, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Bolger, Supreme Court Justice.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 24(d).
ALLARD, Judge.
Michael D. Bailey was convicted of second-degree murder and four counts of tampering with physical evidence following a jury trial. After his convictions were affirmed on direct appeal, Bailey filed an application for post-conviction relief alleging ineffectiveness of trial counsel. The application was filed twelve days late. Bailey asserted in an affidavit that he had been unable to file a timely application because notary services were unavailable "for a lengthy period of time" at the correctional facility where he was housed. On a motion to dismiss by the State, the superior court found that Bailey had failed to present "any admissible evidence" that the notary services were actually unavailable. The superior court further found that Bailey had failed to meet his burden of presenting "clear and convincing evidence" that he was entitled to relief. The superior court therefore dismissed the application as both untimely and failing to state a prima facie case for relief.
On appeal, Bailey contends that the superior court erred in dismissing his application as untimely and further erred by applying the wrong legal standard in evaluating his application to see whether it stated a prima facie case. We agree with Bailey that he raised a triable issue of fact as to whether his application should have been accepted as timely. We also agree that the superior court used the wrong legal standard in evaluating Bailey's pleadings. We conclude, however, that this error was harmless because Bailey's application fails to state a prima facie case for post-conviction relief even under the correct legal standard. This also makes the timeliness error moot. We therefore affirm the superior court's dismissal of Bailey's application.
Background
A jury convicted Michael D. Bailey of second-degree murder for killing his wife, Susan Bailey, and of four counts of tampering with physical evidence. This Court affirmed the convictions on direct appeal. The Alaska Supreme Court denied Bailey's petition for hearing on January 28, 2008.
AS 11.41.110(a)(1) and/or (2), and AS 11.56.610(a)(1), (2), and/or (4).
Bailey v. State, Mem. Op. & J. No. 5244, 2007 WL 2143014, at *22 (Alaska App. July 25, 2007).
Bailey filed a pro se application for post-conviction relief that was first received by the clerk's office on February 9, 2009. Bailey was required to correct various procedural deficiencies to his application, including a failure to pay a filing fee or submit a financial declaration to qualify for a fee exemption. After Bailey's application was finally complete in August 2009, the court appointed Bailey counsel.
Bailey then filed an amended application through counsel alleging eight claims of ineffective assistance against his trial counsel, Assistant Public Defenders Julia Moudy, Wally Tetlow, and David Reinecke. Bailey supported his application with his own affidavit and affidavits from each of his trial counsel.
The State moved to dismiss Bailey's amended application, asserting that (1) the application was untimely because it was filed twelve days after the statutory deadline, and (2) that the amended application failed to state a prima facie case for relief. In response, Bailey conceded that his application was untimely, but he argued that the "savings clause" under AS 12.72.020(b)(1)(B) applied because a lack of notary services at the prison in which he was housed prevented him from timely filing his application. Bailey provided an affidavit attesting that "notary services were not available [at Red Rock Correctional Center] for a lengthy period of time, ending on Tuesday, January 27, 2009."
Superior Court Judge Michael Spaan granted the State's motion to dismiss. The court accepted Bailey's premise that if he was prevented from filing due to an absence of notary services at the prison, his application might qualify for resurrection under the savings clause. The court found, however, that Bailey had not provided "any admissible evidence" that notary services were actually unavailable.
The superior court also dismissed Bailey's application on the State's alternative ground. The court stated that Bailey had "the burden of proving all factual assertions by clear and convincing evidence" and that Bailey had failed to produce even a "scintilla of evidence" that his trial lawyers were ineffective.
Bailey appeals, arguing that (1) the savings clause applied to his untimely application; (2) the superior court used the wrong legal standard in evaluating whether his pleadings stated a prima facie case for relief; and (3) his case should be remanded to the superior court for reevaluation of whether it states a prima facie case under the correct legal standard.
Did the superior court err in failing to recognize that Bailey raised a triable issue of fact as to whether the savings clause applied to his application?
Under AS 12.72.020(a)(3)(A), an application for post-conviction relief must be brought no later than one year after the appellate court's decision on appeal becomes final. In Bailey's case, this Court's decision on appeal became final on January 28, 2008, the date that the Alaska Supreme Court denied Bailey's petition for hearing. Bailey therefore had until January 28, 2009 to file his application for post-conviction relief.
See Alex v. State, 210 P.3d 1225 (Alaska App. 2009) (appeal is considered final for purposes of AS 12.72.020 when Alaska Supreme Court issues order denying petition for hearing or issues decision after granting petition for hearing).
Bailey concedes that he failed to meet this statutory deadline, but he argues that the superior court erred in failing to recognize that he raised a triable issue of fact as to whether the statutory "savings clause" should have applied to his case. Alaska Statute 12.72.020 provides, in pertinent part:
(b) Notwithstanding (a)(3) and (4) of this section [the provisions laying out the timeliness requirements], a court may hear a claimBailey argued below that he was "physically prevented" from filing a timely claim by the prison's failure to provide notary services during the relevant time. The superior court found that Bailey had failed to produce any "admissible evidence" to support this claim. The court noted that the prison materials submitted by Bailey suggested only that the prison did not have a set notary schedule during the relevant time.
(1) if the applicant establishes due diligence in presenting the claim and sets out facts supported by admissible evidence establishing that the applicant
. . . .
(B) was physically prevented by an agent of the state from filing a timely claim[.]
Bailey argues that this ruling is error because he also submitted an affidavit directly stating that "notary services were not available for a lengthy period of time ending on January 27, 2009." We agree with Bailey that his affidavit constituted admissible evidence on this issue and that it raised a triable issue of fact as to whether notary services were available during the relevant time.
On appeal, the State challenges the underlying premise of Bailey's savings clause argument. The State argues that lack of notary services at a prison (even if true) does not prevent a prisoner from filing a timely application. The State asserts that Bailey was still free to file an un-notarized application within the statutory deadline and that no state agent "physically prevented" him from doing so. The State argues that verification by notary is a procedural defect that can be corrected at a later date and that Bailey therefore had no excuse for failing to file a timely, albeit procedurally deficient, application.
See Mullin v. State, 996 P.2d 737, 738 (Alaska App. 2000) (recognizing "long-standing rule that a pleading may satisfy a filing deadline even though the pleading is technically deficient").
We agree with the State that, unlike timeliness which is jurisdictional, notarization is a procedural defect. We therefore agree that the better course of action for a prisoner in Bailey's situation would be to file an unverified application within the statutory deadline rather than risk filing an untimely one.
See Miles v. State, 91 P.3d 588, 590 (Nev. 2004) (per curiam) (finding that an inadequate verification of post-conviction relief application is an amendable, not a jurisdictional, defect); Rodden v. State, 795 S.W.2d 393, 395 (Mo. 1990) ("Even an essential element of a pleading, like verification, may be added by amendment.").
We note that Alaska law already provides a solution for the dilemma that Bailey asserts he faced here. Under AS 09.63.020, a litigant may "certify" a document that the law requires to be verified if a notary public is otherwise unavailable. The certification must include the date and place of execution, the fact that a notary public or other official empowered to administer oaths is unavailable, and the following signed statement: "I certify under penalty of perjury that the foregoing is true."
AS 09.63.020(a).
The problem with the State's argument, however, is that neither Criminal Rule 35.1 nor the court system's post-conviction application form alerts defendants to this option. Quite to the contrary, both the rule and the form explicitly discourage a defendant from filing an unverified application under any circumstances. Criminal Rule 35.1(d) requires an applicant to state "under oath" all facts within his personal knowledge and warns applicants that incomplete applications "shall be returned to the applicant for completion." The court system's application likewise directs applicants not to sign their application "until in the presence of a notary or court clerk."
Given these clear directives, it is understandable why a state prisoner like Bailey, who is dependent on the prison for access to notary services, might have believed that he had to wait until notary services became available to file his application even though doing so meant missing the statutory deadline. We decline therefore to accept the State's argument that Bailey's actions demonstrated a lack of diligence as a matter of law.
Thus, we conclude that the superior court erred in failing to recognize that Bailey raised a triable issue of fact as to whether the savings clause applied to his otherwise untimely application. We therefore turn to the court's alternative ruling that Bailey's application failed to state a prima facie case for relief.
Did the superior court use the correct legal standard in evaluating Bailey's pleadings for failure to state a prima facie case for post-conviction relief?
In evaluating whether a defendant's pleadings state a prima facie case for post-conviction relief, the trial court is required to evaluate all well-pleaded assertions of fact in the amended application and all supporting documents, and to decide whether those well-pleaded assertions of fact, if ultimately proved, would entitle the defendant to relief. The trial court must view any disputed facts in the defendant's favor. Whether a defendant's post-conviction pleadings state a prima facie case for relief is a question of law that this Court reviews de novo.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007); State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
LaBrake, 152 P.3d at 480; Jones, 759 P.2d at 565.
Burton v. State, 180 P.3d 964, 974 (Alaska App. 2008).
On appeal, the parties agree that the superior court failed to use the correct legal standard to evaluate Bailey's pleadings. The State argues, however, that the error was harmless because our review is de novo and Bailey's application fails to state a prima facie case under the correct legal standard. Bailey argues that his pleadings state a prima facie case and further argues that his case should be remanded so that the superior court can evaluate his pleadings under the correct legal standard, citing our unpublished decision in Moses v. State for support.
Id..
Mem. Op. & J. No. 5263, 2007 WL 2745146 (Alaska App. Sept. 19, 2007).
Bailey's reliance on Moses is misplaced. In Moses, the superior court dismissed the defendant's application for failure to state a prima facie case under the wrong legal standard, and we remanded the case back to the superior court for a new evaluation under the correct legal standard. But, as Judge Mannheimer explained in his concurrence, we chose to remand Moses rather than conduct our own de novo review of his pleadings because we had only recently issued our decision in LaBrake v. State, clarifying the pleading requirements in post-conviction cases.
Id. at *3-4.
152 P.3d 474 (Alaska App. 2007).
Moses, 2007 WL 2745146, at *7 (Mannheimer, J., concurring).
In LaBrake, this Court directly clarified that the requirement that the trial court treat all "well-pleaded assertions of fact" as true at the pleading stage did not apply to assertions of fact that were not well-pleaded. As the Court explained:
[A] court deciding a motion for judgement on the pleadings need not assume the truth of the non-moving party's conclusions of law, nor the truth of the non-moving party's assertions concerning facts that are legally impossible, or the party's assertions concerning matters that would not be admissible in evidence. Moreover, the court need not assume the truth of assertions that are patently false or unfounded, based on the existing record or based on the court's own judicial notice. In addition, a court need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details.
Moses was decided only seven months after the decision in LaBrake was issued, and Moses filed his amended application without the benefit of LaBrake's clarification of the pleading requirements. In contrast, Bailey filed his amended application more than three and a half years after our decision in LaBrake. The reasons underlying the remand in Moses do not exist here.
Id. (citations omitted).
Id. (citations omitted).
We therefore turn to the question of whether Bailey's application states a prima facie case for post-conviction relief.
Does Bailey's application for post-conviction relief establish a prima facie case for relief on any of his claims of ineffective assistance of trial counsel?
To present a prima facie case of ineffective assistance of counsel under Alaska law, a defendant must plead facts that, if true, would entitle the defendant to relief on both prongs of the Risher test. That is, the defendant must assert specific facts demonstrating (1) that his or her attorney's performance fell below the objective standard of minimal competence; and (2) that there is a reasonable possibility that the incompetent performance contributed to the outcome.
Risher v. State, 523 P.2d 421 (Alaska 1974).
See Jones, 759 P.2d at 567-68.
Id.; Risher, 523 P.2d at 424-25.
In particular, the defendant's pleadings must rebut the presumption that the attorney performed competently and the further presumption that the attorney's actions were motivated by "sound tactical considerations." The defendant therefore bears the affirmative burden in post-conviction relief litigation of pleading facts that either rule out the possibility of a tactical reason or that demonstrate the tactic was one that no competent attorney would have adopted under the circumstances.
Jones, 759 P.2d at 569.
Id.
In the trial court proceedings below, Bailey alleged eight claims of ineffective assistance of counsel against his various trial attorneys. On appeal, however, Bailey focuses on only four claims: (1) that Assistant Public Defender Julia Moudy provided ineffective assistance of counsel in failing to obtain purportedly exculpatory tape recordings; (2) that Assistant Public Defender Moudy committed ineffective assistance of counsel in failing to investigate Bailey's allegedly exculpatory physical injuries; (3) that Assistant Public Defenders Moudy and Wally Tetlow committed ineffective assistance of counsel in failing to communicate with each other about Bailey's allegedly exculpatory physical injuries; and (4) that Assistant Public Defender Tetlow committed ineffective assistance of counsel in failing to secure and present evidence that Bailey's sole means of transportation was an inoperable truck. For the reasons described below, we conclude that Bailey has failed to state a prima facie case for relief on any of these claims.
We have reviewed the claims that Bailey does not argue on appeal and conclude that those claims also fail to state a prima facie case for relief.
With regards to the first claim, Bailey alleged that he tape-recorded his conversations with police officers and that he told Moudy where to find the recordings. Bailey claimed that the tape-recordings "would have shown that the investigating officers were wrong when they testified about incriminating statements [Bailey] had made to them." In her affidavit, Moudy stated that on April 7, 2002, Bailey told her about "tapes and papers" in his possession at his home but that the pre-trial investigation determined that a person named "Breezy" had Bailey's tapes and property and that Bailey was not able or willing to provide Breezy's true identity to the defense team. Bailey did not file a counter-affidavit or otherwise respond to the assertions about Breezy in his pleadings.
On appeal, Bailey argues that these facts establish a prima facie case and that they were sufficient to raise a triable issue of "whether the evidence was what Mr. Bailey said it was, and if so, whether Ms. Moudy was diligent and acted reasonably to investigate it." This is incorrect. An attorney cannot be ineffective for failing to follow through on information he or she never received. Bailey never responded to Moudy's claim that the investigation was stalled by Bailey's inability or unwillingness to provide information about "Breezy," and his claim therefore fails as a matter of law on that ground. Moreover, while Bailey claimed that the tape-recordings contained exculpatory evidence, this is simply a conclusory assertion of the ultimate fact and is insufficient under LaBrake. Bailey did not produce the tape-recordings so that their exculpatory value could be judged directly, nor did he provide a detailed explanation of what was allegedly on the tapes and an explanation of why they were now unavailable but would have been available to his attorneys at trial through reasonable effort.
See Allen v. State, 153 P.3d 1019, 1027 (Alaska App. 2007).
See LaBrake, 152 P.3d at 481.
Id.
See id.; see also Criminal Rule 35.1(d) (requiring an applicant for post-conviction relief to attach affidavits, records, or other evidence supporting the applicant's allegations or to recite why they are not attached).
Bailey's second claim is that Moudy, Tetlow, and Reinecke were ineffective because they failed to secure medical records or testimony that Bailey claimed would have shown that he was injured and could not lift an object as heavy as a human body. Bailey produced no documentation of any physical injury to support this claim or any explanation of what documentation allegedly existed at the time that would have been available to his attorneys and what specifically that documentation would have showed.
On appeal, Bailey argues that he raised a triable issue of fact as to whether his injuries were severe enough to be relevant and exculpatory, and whether his trial counsel was diligent in investigating them. But this is incorrect. Evidence is not presumed to exist or to have exculpatory value based only on a defendant's conclusory assertions that it does. Bailey's pleadings are again insufficient to state a prima facie case under LaBrake.
See LaBrake, 152 P.3d at 481.
Id.
Bailey's third claim on appeal is a claim that he never made in the trial court. Bailey points out that Moudy's affidavit admitted that Bailey had told her that he had knee problems and vocational rehabilitation while Tetlow's affidavit did not discuss this issue. Bailey argues that he has therefore raised a triable issue of fact as to whether his attorneys shared relevant information with each other about Bailey's allegedly exculpatory physical injuries. But Bailey never made this claim below and therefore cannot raise it now on appeal. Nor do these pleadings state a prima facie case for relief given Bailey's failure to allege what specific medical documentation existed at the time and what that documentation would have shown.
State v. Nw. Const., Inc., 741 P.2d 235, 239 (Alaska 1987).
Bailey's last claim for relief is based on Bailey's claim that "[m]y lawyers all knew that my only transportation was a truck which was not running . . . and that I could not have moved a body in my truck for this reason." On appeal, Bailey argues that whether or not he had access to a working vehicle creates a triable question of fact. But Tetlow and Reinecke both recalled being told this fact and determining that its exculpatory value was negligible in light of Bailey's presumed access to other vehicles. Bailey has not argued why that assessment was incorrect or how that determination was not the type of tactical decision that a competent attorney might make.
See Jones, 759 P.2d at 569.
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Conclusion
We AFFIRM the superior court's judgment.