Opinion
Court of Appeals No. A-10391.
June 16, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-05-1276 CI.
Anthony Lee Brown, Eloy, Arizona, Appellant, pro se. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Anthony Brown was convicted of murder in the first degree, felony murder, and armed robbery. The Alaska Supreme Court affirmed his convictions in Brown v. State.
601 P.2d 221 (Alaska 1979).
Brown filed a petition for habeas corpus in 2005. In his petition, Brown pointed out that expert testimony at his trial which linked Brown to ammunition that had killed the victim had now been shown to be highly questionable.
Brown, 601 P.2d at 224.
The State moved to dismiss the application in March of 2005. The State pointed out that Brown had filed his application, which was properly an application for post-conviction relief, beyond the applicable statute of limitations. The State pointed out that Brown could only avoid the statute of limitations under AS 12.72.020(b)(2) for newly discovered evidence. In order to prevail under this section, the applicant must establish "due diligence in presenting the claim and [set] out facts supported by evidence that is admissible" that was not known to him within eighteen months after entry of the judgment of conviction that "is not cumulative to the evidence presented at trial," "is not impeachment evidence," and "establishes by clear and convincing evidence that the applicant is innocent." The State argued that Brown had not addressed "the impressive amount of evidence adduced against him at his trial."
Brown next moved to strike the State's response. He argued that he was entitled to file for habeas corpus. The State opposed, again pointing out that Brown was raising a newly discovered evidence claim. Brown again protested that he was raising a habeas corpus claim.
Superior Court Judge Randy Olsen dismissed Brown's application on July 28, 2005. Judge Olsen concluded that Brown's claim was properly classified as an application for post-conviction relief based upon a claim of newly discovered evidence. Judge Olsen concluded:
Brown argues that the evidence offered by Agent Havekost at his trial was erroneous and misleading. Even assuming this assertion, such a showing is insufficient to warrant a grant of post-conviction relief. Alaska law plainly states that, where a petition is founded on newly discovered evidence, the petitioner must produce "clear and convincing evidence that . . . [he] is innocent," not merely that evidence was erroneously admitted. . . .
Brown does not present proof of his innocence. His only complaint is to the admission of evidence that may have contributed to the conviction. This assertion does not authorize the expansion of the statute of limitations beyond the limits set by the Legislature.
Brown did not ask the court for reconsideration and did not appeal. Over three years later, in December of 2008, Brown filed a Civil Rule 60(b) motion seeking relief from Judge Olsen's 2005 dismissal of his application for post-conviction relief. Brown relied on Holden v. State, which provides that, in a first application for post-conviction relief, an indigent defendant is entitled to the assistance of counsel for the purpose of determining whether the application is timely. Brown supported his application with a letter which he sent to then-presiding judge, Niesje J. Steinkruger, asking for a lawyer to assist him in presenting his 2005 application. The letter indicates that it was sent in April of 2005.
172 P.3d 815, 818 (Alaska App. 2007).
The State moved to dismiss the 2008 application. The State argued that Brown was asking Judge Olsen to revisit his 2005 order dismissing Brown's application for post-conviction relief. The State argued that Civil Rule 60(b) did not allow a party to escape the duty of filing a timely motion for reconsideration or an appeal. Judge Olsen denied Brown's motion seeking relief from the court's 2005 dismissal of his application for post-conviction relief.
Civil Rule 60(b) is not a substitute for a timely appeal, and it does not allow relitigation of issues that have been resolved by a final judgment. We recently held that Civil Rule 60(b) cannot be used to justify an untimely application for post-conviction relief. We have also held that a prisoner may not use a habeas corpus petition or a post-conviction application to avoid the deadline for an appeal of a prison disciplinary decision. Similarly, a party cannot avoid the deadline for an appeal from an order dismissing an application for post-conviction relief by making the same arguments in a motion for relief from judgment.
Sandoval v. Sandoval, 915 P.2d 1222, 1223 n. 2 (Alaska 1996); Kenai Peninsula Borough v. English Bay Village Corp., 781 P.2d 6, 7 (Alaska 1989) (overturned on other grounds).
Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984).
McLaughlin v. State, 214 P.3d 386, 386-87 (Alaska App. 2009).
Higgins v. Briggs, 876 P.2d 539, 543 (Alaska App. 1994) ("a prisoner who inexcusably fails to appeal can not thereafter take advantage of his own neglect to justify a collateral attack on his conviction or sentence").
If Brown disagreed with Judge Olsen's 2005 decision dismissing his application for post-conviction relief, he had available options. He could have asked for reconsideration or he could have appealed. But Brown's Civil Rule 60(b) motion is simply an attempt to circumvent the rules requiring a timely motion for reconsideration or a timely appeal of the dismissal of his 2005 application for post-conviction relief. Brown has not established any grounds for filing an untimely motion for reconsideration or an untimely appeal.
The judgment of the superior court is AFFIRMED.