Opinion
Court of Appeals No. A-9697.
May 21, 2008.
Appeal from the Superior Court, Third Judicial District, Dillingham, Frederick J. Torrisi, Judge. Trial Court No. 3DI-06-36 CI.
Richard L. Clark, pro se, Seward, for Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Richard Lance Clark was convicted of first-degree arson and third-degree assault in case number 3DI-03-120 CR. Clark appealed, and this court affirmed Clark's convictions. But we held that Clark's separate convictions for arson and assault should merge, and we directed the superior court to resentence Clark.
AS 11.46.400(a) and AS 11.41.220(a)(1)(A), respectively.
Clark v. State, Alaska App. Memorandum Opinion and Judgment No. 5125 at 20 (Oct. 11, 2006), 2006 WL 2924996 at *11.
Id. at 20-21, 2006 WL 2924996 at *11.
While that direct appeal was pending, Clark filed a petition for post-conviction relief: case number 3DI-04-111 CI. The superior court (with Clark's agreement) stayed this post-conviction relief action until Clark's direct appeal was decided. Now that Clark's appeal has been decided, the post-conviction relief action has become active.
In addition, in 2006 (while his direct appeal was still pending and his post-conviction relief action was still stayed), Clark filed a petition for writ of habeas corpus: case number 3DI-06-36 CI. On July 14, 2006, Superior Court Judge Frederick J. Torrisi denied a motion to reconsider his previous order dismissing this habeas corpus action.
In his decision, Judge Torrisi did not address or decide any of the legal claims that Clark raised in his habeas corpus petition. Rather, Judge Torrisi concluded that, because Clark still had a pending (and stayed) post-conviction relief action, Clark could present all of his legal claims in that post-conviction relief litigation — and, thus, there was no need for Clark to pursue a separate habeas corpus action. Here is what Judge Torrisi wrote in his decision of July 14, 2006:
Mr. Clark has consistently distinguished the issues [raised] in his . . . application for post-conviction relief from those he seeks to litigate in this habeas action. . . . [I am] not determining that [those habeas] issues are frivolous, but only that they are not so unique that they need their own lawsuit[.] . . . [Those issues] can in fact . . . be resolved in the usual order. . . . [D]ismissal of this [habeas corpus] action in no way prejudices [Mr. Clark's] rights, [because his claims] remain at issue in the pending [appellate and post-conviction relief] cases. . . . [I conclude only] that there is no merit to the prosecution of separate applications [for relief].
Footnotes and italics omitted.
A few days later, Clark filed the present appeal — File No. A-9697 — in which he argues that Judge Torrisi should not have dismissed his habeas corpus action (case number 3DI-06-36 CI).
On September 1, 2006, we issued a notice to Clark explaining the foregoing analysis of his case and explaining that if he chose to appeal Judge Torrisi's order dismissing his habeas corpus action he would not be able to obtain a ruling from this court on the merits of his underlying legal claims. Rather, he could raise only two narrow issues on appeal: (1) Was Judge Torrisi correct when he concluded that all of Clark's legal claims could be litigated in Clark's two other cases (the direct appeal, and the petition for post-conviction relief) and (2) If Judge Torrisi was correct on this point, did the judge then have the authority to dismiss Clark's habeas corpus action?
On September 25, 2006, Clark filed papers with this court indicating that he still wished to proceed with this appeal.
We conclude that Judge Torrisi was correct in dismissing Clark's petition for w rit of habeas corpus. Habeas corpus is an extraordinary remedy. In Kolody v. State, we stated that "Alaska Civil Rule 86(n) codifies the rule that the writ of habeas corpus is an extraordinary remedy, and that the litigants are not allowed to seek habeas corpus relief if they are entitled to seek relief using normal trial court or appellate procedures." Clark is entitled to seek relief on the claims that he raises in his writ of habeas corpus in a post-conviction relief action under Alaska Criminal Rule 35.1. Clark therefore has a normal trial court remedy for bringing his claims. He therefore must bring his claims in the post-conviction relief action.
172 P.3d 842 (Alaska App. 2007).
Id. at 843.
Clark also argues that Judge Torrisi has a personal bias in this case. He argues that Judge Torrisi should have disqualified himself from hearing this case and that this court erred in sending the case back to Judge Torrisi for resentencing. But, in order to bring this claim, Clark must first present his allegations in the trial court. The grounds and procedure for disqualifying a judicial officer for cause are set out in AS 22.20.020. Clark can proceed under this statute in the trial court. We have no basis to consider this claim on appeal.
The judgment of the superior court is AFFIRMED.