Opinion
Court of Appeals No. A-9741.
June 27, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Trial Court No. 3AN-06-7119 CI.
Daniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Michael Sean McLaughlin, 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.
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
In April 2006, William Griest, an Alaska prisoner incarcerated in Arizona, acting pro se, filed a petition for a writ of habeas corpus in the Anchorage superior court. In his petition, Griest alleged that he was being "restrained of his liberty in violation of the law and constitution of the United States." However, Griest offered little to support this statement. The following passage is the closest that Griest comes to describing the alleged illegality that he is complaining of:
[F]or the last 25 years[,] the Alaska state courts, [the] Department of Law, and the [d]efense [b]ar have relied upon, or [have] not opposed, state law that violated the 5th, 6th, and 14th Amendments [to] the U.S. Constitution. . . . This bad state law has created structural error in the fundamental trial mechanism. . . . The bad state law was in effect at the time of [Griest's] trial . . . and thus the trial process by which he was convicted l[a]cked the required constitutional safeguards.
The Public Defender Agency was appointed to represent Griest. A few days later, the State moved to dismiss Griest's petition, asserting in a one-sentence pleading that Griest had "fail[ed] to state a claim upon which relief may be granted." Superior Court Judge Peter A. Michalski ordered Griest to respond to the State's motion by July 10, 2006.
On that day, the Public Defender Agency filed two pleadings: a motion to withdraw as counsel, and an opposition to the State's motion to dismiss.
The motion to withdraw was based on AS 18.85.100 — which, according to the Public Defender, did not authorize that Agency to represent indigent defendants who were pursuing petitions for writ of habeas corpus. It appears (from an affidavit filed by Griest) that his public defender attempted to persuade him to abandon his petition for writ of habeas corpus and instead file a petition for post-conviction relief under Alaska Criminal Rule 35.1 — but Griest strongly opposed this suggestion.
The Public Defender's opposition to the State's motion to dismiss was an attempt to turn the tables on the State: the Public Defender argued that the State's motion was procedurally defective because it did not explain why Griest's pleading failed to state a cause of action.
After receiving these two pleadings from the Public Defender Agency, Judge Michalski granted the State's motion to dismiss Griest's habeas corpus petition. The judge did not rule on the Public Defender Agency's motion to withdraw. Thus, the Agency continues to represent Griest in this appeal.
On appeal, Griest argues that the superior court should not have granted the State's motion to dismiss w ithout first inform ing Griest what he had to do in order to avoid the dismissal.
One major difficulty on appeal is that it is unclear why Judge Michalski dismissed Griest's petition.
It is true, as we explained above, that Griest's petition offers little (other than conclusory assertions about "bad law") to explain why Griest believes that his conviction should be vacated. Judge Michalski may have concluded that the deficiencies in Griest's petition were so obvious, especially to a lawyer, that the Public Defender's response to the State's motion to dismiss was essentially a concession that Griest had nothing to say in opposition (other than to criticize the format of the State's motion).
On the other hand, it is also possible that Judge Michalski dismissed Griest's petition because Judge Michalski was aware that Griest should have filed for postconviction relief and that Griest indicated he did not wish to proceed if the superior court treated his petition as an application for post-conviction relief.
This second scenario merits further discussion. Civil Rule 86(m) declares that if a prisoner files a habeas corpus petition seeking relief that would be available in a post-conviction relief proceeding, the superior court must treat the prisoner's pleading as a petition for post-conviction relief. As we explained above, Griest claims that, as a result of criminal proceedings in the courts of Alaska, he is being held in prison in violation of the laws and Constitution of the United States. This is a claim that could be raised in post-conviction relief litigation. Criminal Rule 35.1(a)(1) provides: "A person who has been convicted of or sentenced for a crime may institute a proceeding for postconviction relief under AS 12.72.010 — 12.72.040 if the person claims that the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of Alaska." Accordingly, Judge Michalski was obliged, under Civil Rule 86(m), to treat Griest's petition as a petition for post-conviction relief.
But Griest was apparently strongly opposed to pursuing the litigation if the superior court treated it as a post-conviction relief action. Judge Michalski may have simply dismissed Griest's case because Griest indicated that he would refuse to pursue the litigation if it was characterized as a post-conviction relief proceeding — which, under Civil Rule 86(m), was the only lawful characterization.
From the record, it appears likely that Griest's position on this matter — his strong opposition to having his petition treated as an application for post-conviction relief — arises from the real possibility that his claim would be barred by the statute of limitations that governs post-conviction relief actions. But Griest's opposition would not entitle him to circumvent the statute of limitations and pursue his claim as a petition for writ of habeas corpus under Civil Rule 86.
See AS 12.72.020 (establishing statute of limitations on post-conviction relief claims).
See Hertz v. State, 8 P.3d 1144, 1147-49 (Alaska App. 2000) (holding that a defendant who is procedurally barred from pursuing a petition for post-conviction relief can not re-package the same claims as a petition for writ of habeas corpus).
In other words, it appears that Judge Michalski would have been justified in dismissing Griest's petition on either of the grounds described above: Griest's failure to explain his claim of illegality, and Griest's refusal to proceed if the superior court, following its duty under Civil Rule 86(m), treated Griest's case as an action for postconviction relief.
Nevertheless, there is another facet to this litigation: it appears that Griest may be claiming that he was denied his Sixth Amendment right to jury trial as interpreted in Blakely v. Washington.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding that the Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a jury trial on all disputed factual issues, other than prior convictions, that are necessary to increase the defendant's term of imprisonment).
Griest's habeas corpus petition does not mention Blakely. Nevertheless, his assertion that Alaska law has violated the Fifth, Sixth, and Fourteenth Amendments "for the last twenty-five years" appears to be based on Blakely — for twenty-five years is the interval between the time when presumptive sentencing took effect in Alaska (January 1980) and the time when this Court first acknowledged that significant aspects of Alaska's presumptive sentencing scheme violated the right to jury trial announced in Blakely (July 2005).
Haag v. State, 117 P.3d 775, 782 (Alaska App. 2005).
In addition, toward the end of Griest's petition for writ of habeas corpus, he asserts that, in light of the alleged flaw in Alaska law (the flaw that Griest does not describe), "grounds for relief from an illegal sentence likely exist." Again, this sounds like a Blakely claim.
If Griest's claim does indeed rest on the Sixth Amendment right to jury trial as construed in Blakely, then Griest should be allowed to file a motion in his underlying criminal case for the correction of an illegal sentence under Criminal Rule 35(a). Such motions are not limited by any statute of limitations and, moreover, the Public Defender Agency has unquestioned authority to represent Griest in pursuing a Rule 35(a) motion, because the motion is a continuation of Griest's original criminal prosecution.
See Walsh v. State, 134 P.3d 366, 374 (Alaska App. 2006) (holding that a Rule 35(a) motion to correct an illegal sentence is an appropriate method to raise a Blakely claim).
For these reasons, we AFFIRM the superior court's dismissal of Griest's petition for writ of habeas corpus, but we nevertheless REMAND Griest's case to the superior court so that Griest can inform the court (1) whether he now wishes to pursue a petition for post-conviction relief or, in the alternative, (2) whether he wishes to pursue a motion for correction of illegal sentence under Criminal Rule 35(a).
If Griest wishes to pursue either of these courses, the superior court shall allow Griest to proceed. However, the superior court can still insist that Griest give a full explanation of why he believes that pre-2005 Alaska law violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and why he believes that this purported flaw in Alaska law entitles him to reversal of his convictions, or reversal of his sentences, or both.
If Griest does not wish to pursue either a petition for post-conviction relief or a motion for correction of illegal sentence under Criminal Rule 35(a), the superior court is authorized to dismiss Griest's current litigation with prejudice.