Opinion
Court of Appeals Nos. A-10548 10577.
February 9, 2011.
Appeal from the Superior Court, First Judicial District, Ketchikan, William Carey, Judge, Trial Court Nos. 1KE-1999-019 Civ 1KE-2009-034 Civ.
John Bruce Grinols, in propria persona, Ketchikan, for the Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
John Bruce Grinols appeals the decisions of the superior court in two post-conviction relief cases. In the first of these appeals (our file number A-10548), Grinols challenges the superior court's decision not to allow Grinols to file new pleadings in superior court file number No. 1KE-1999-019 Civ — a post-conviction relief case that had been closed for several years when Grinols submitted his new documents. In the second of these appeals (our file number A-10577), Grinols challenges the superior court's dismissal of his most recent petition for post-conviction relief — superior court file number 1KE-2009-034 Civ. For the reasons explained in this opinion, we affirm both of the superior court's rulings.
Underlying facts
For present purposes, the history of this litigation begins in 1992, when Grinols was convicted of three counts of sexual abuse of a minor. Grinols pursued a direct appeal of his convictions, and this Court affirmed those convictions in Grinols v. State, Alaska App. Memorandum Opinion No. 3163 (May 10, 1995), 1995 WL 17220771.
In 1995 (the same year that we decided Grinols's direct appeal), Grinols filed his first petition for post-conviction relief. In this petition, Grinols alleged that he had received ineffective assistance from his trial attorney. The superior court found that Grinols's trial attorney had acted competently, and we affirmed the superior court's ruling in Grinols v. State, Alaska App. Memorandum Opinion No. 3862 (August 19, 1998), 1998 WL 34374739.
The following year ( i.e., in 1999), Grinols filed a multi-claim petition for writ of habeas corpus, which the superior court treated as a second petition for post-conviction relief. Because this was Grinols's second petition, the superior court dismissed the action pursuant to AS 12.72.020(a)(6) — a statute that generally bars second and successive petitions for post-conviction relief.
See Grinols v. State, 10 P.3d 600, 605 (Alaska App. 2000).
See id. at 608.
On appeal, this Court held that the superior court acted correctly when it characterized Grinols's petition for writ of habeas corpus as a second petition for post-conviction relief, and we also held that most of Grinols's claims for relief were barred because they either had been raised before or could have been raised before. See Grinols v. State, 10 P.3d 600, 605, 607 (Alaska App. 2000) (hereafter " Grinols III").
Citing Alaska Civil Rule 86(m) and Wood v. Endell, 702 P.2d 248, 249 n. 1 (Alaska App. 1985).
Of Grinols's three remaining claims, one was actually a claim that he could raise by motion in his underlying criminal case, and one claim — a claim relating to the Department of Corrections' calculation of Grinols's release date — could be pursued in post-conviction relief litigation because of an express provision of the post-conviction relief statute. This left Grinols's claim that he received ineffective assistance from the attorney who represented him in the first post-conviction relief litigation. This Court held that, despite the statutory prohibition on successive petitions for post-conviction relief codified in AS 12.72.020(a)(6), Grinols was entitled to pursue this claim in a successive petition for post-conviction relief. Grinols III, 10 P.3d at 617-18.
Grinols III, 10 P.3d at 607-08.
Id. at 608-09.
Ibid.
Although we held that Grinols was entitled to pursue this ineffective assistance of counsel claim, we noted that Grinols's petition to the superior court did not sufficiently address or offer a prima facie case on all the essential elements of such a claim (as defined in Grinols III, 10 P.3d at 619-620). We therefore remanded Grinols's case to the superior court to allow him "to amend or supplement his petition to present a prima facie case on all of [the essential] elements [of his claim]." Id. at 621.
However, our decision in Grinols III did not take effect immediately, because both Grinols and the State petitioned the Alaska Supreme Court to review our decision. The supreme court granted hearing and ultimately, in a decision issued on August 1, 2003, the supreme court affirmed this Court's ruling that Grinols was entitled to seek post-conviction relief on the ground that he received ineffective assistance from the attorney who represented him in his first petition for post-conviction relief. Grinols v. State ( Grinols IV), 74 P.3d 889, 895 (Alaska 2003).
See Alaska Appellate Rules 507(b) and 512(a), which delay the effective date of a decision of this Court if either party files a timely petition for hearing to the Alaska Supreme Court.
In August 2003, following the supreme court's decision in Grinols IV, Grinols's case returned to the superior court so that Grinols could file an amended petition (or supplement his petition) on the issue of whether he received ineffective assistance from the attorney who represented him in his first post-conviction relief litigation.
In September 2003, the State filed a motion to dismiss this remaining portion of Grinols's petition for post-conviction relief. The State noted that, during the appellate litigation of his post-conviction relief claims, Grinols fled Alaska and was at that time a fugitive from justice. The State argued that, because Grinols was a fugitive and no longer within the physical jurisdiction of the Alaska courts, he was not entitled to pursue his post-conviction relief claim.
The superior court issued an order stating that Grinols's petition for post-conviction relief would be dismissed if Grinols did not return to Alaska within thirty days. After the superior court issued this order, Grinols filed additional documents from Costa Rica (where he was then residing), but he did not return to Alaska. Consequently, on November 10, 2003, the superior court dismissed the remaining portion of Grinols's second petition for post-conviction relief.
Grinols then appealed the superior court's dismissal of his petition. W hen Grinols filed this appeal, he submitted an informal brief (even though the time for briefing had not yet arrived). This Court issued an order requiring Grinols to notify us within thirty days whether he wished to proceed on this informal brief or whether, instead, he wished to wait until the record on appeal was assembled and then file a formal brief. Grinols never responded to this Court's order. Consequently, Grinols's appeal was closed in 2004.
See Court of Appeals File Nos. A-8771 A-8772.
Our closure of Grinols's appeal had the effect of ending Grinols's challenge to the superior court's dismissal of his second petition for post-conviction relief.
Litigation pertaining to Grinols's case started up again in 2008, when Grinols attempted to file various documents in the Alaska Supreme Court. These documents included a "Petition for Extraordinary Writ as Amend[ed] Nunc Pro Tunc", an "Emergency Petition as Amend[ed] Extraordinary", and a request to proceed in forma pauperis ( i.e., at public expense). Given the nature of these documents, and given the fact that Grinols had no case pending before the supreme court, the supreme court directed the Appellate Clerk's Office to forward Grinols's pleadings to the superior court.
In addition, following the supreme court's transmittal of the documents to the superior court, Grinols sent additional documents to the superior court, including a "Request for Rulings" and various supporting documents.
In these various pleadings, Grinols made several claims. Some of Grinols's claims related to Grinols's attempt to regain custody of his daughter (who was removed from his custody after he was arrested in Canada and sent to back to the United States). Grinols also asked the court to order the removal of "hate speech" from his FBI records. (By "hate speech", Grinols seems to have been referring to information in the FBI's computer database concerning Grinols's Alaska convictions for sexual abuse of a minor; Grinols apparently believed that this Court had ordered reversal of those convictions in Grinols III.) In addition, Grinols asserted that a variety of individuals (including the witnesses and the prosecutor at his trial, his former probation officer, Canadian immigration officials, and various other officials) had lied about him and conspired against him in different ways.
In response to all of these documents, the superior court opened a new post-conviction relief case, file number 1KE-2009-034 Civ. This was Grinols's third post-conviction relief litigation.
On January 23, 2009, Grinols filed a request for court-appointed counsel to assist him in litigating this third petition for post-conviction relief. In response, the superior court issued an order appointing the Public Defender Agency. In March 2009, Public Defender Quinlan Steiner filed a superseding entry of appearance in Grinols's case and filed a motion to stay the post-conviction relief proceedings — under the false belief that these post-conviction relief proceedings related to the revocation of Grinols's probation in 2001. Even though Grinols's probation revocation was not at issue in the post-conviction relief proceedings, the superior court granted the requested stay.
In June 2009, the Public Defender Agency asked the superior court for permission to withdraw from Grinols's case, and for appointment of the Office of Public Advocacy in its stead. The superior court granted this request. The Office of Public Advocacy initially entered a substitute appearance, but then it asked the superior court to vacate the appointment. OPA pointed out that File No. 1KE-2009-034 Civ was a successive petition for post-conviction relief, and that OPA was statutorily barred from representing defendants in successive petitions for post-conviction relief.
See AS 18.85.100(c) and AS 44.21.410(a)(5).
On June 16, 2009, the superior court issued an order allowing OPA to withdraw from Grinols's case.
The next day, Grinols filed an application for appointment of counsel under Alaska Administrative Rule 12(e). Superior Court Judge William Carey denied this request. Judge Carey noted that he arguably had the authority to appoint counsel for Grinols if one was needed, but he concluded that the appointment of counsel was not necessary because Grinols's arguments did not address the competence of his prior post-conviction relief attorney.
See Grinols III, 10 P.3d at 623.
On July 31, 2009, Grinols filed a "Motion for Summary Judgment". In this pleading, Grinols again made a variety of claims relating to his original criminal trial and his desire to regain custody of his daughter. In addition, Grinols again requested the removal of "hate speech" from his FBI computer file, and he alleged that various officials had conspired against him.
On August 21, 2009, Judge Carey issued an order in which he declared that he would refuse to adjudicate most of Grinols's claims. The judge noted that, in a post-conviction relief action, he did not have jurisdiction over many of Grinols's claims (the claims relating to the custody of Grinols's daughter, the claims relating to alleged misconduct by officials in California and Canada, and the claims relating to the FBI's computer files). The judge further noted that, among all of Grinols's allegations, the only one that seemed to be even potentially relevant to a claim of post-conviction relief was Grinols's assertion that he could prove that he was not in Ketchikan in February 1991 ( i.e., around the time of the acts of sexual abuse for which he had been convicted). Apparently out of an abundance of caution, Judge Carey said that he would entertain further litigation of that one claim.
The State then filed a motion to dismiss the post-conviction relief action. The State noted that Grinols's claim about his whereabouts in February 1991 had no apparent relevance to any claim that Grinols received ineffective assistance from the attorney who represented him in his first petition for post-conviction relief. The State further noted that, even though the post-conviction relief statute sets no time limit on claims involving newly discovered evidence of a defendant's factual innocence, any information concerning Grinols's whereabouts in February 1991 could not possibly be "newly discovered", since Grinols was presumably aware of his own whereabouts at all relevant times.
See AS 12.72.020(b)(2).
On September 8, 2009, Grinols filed a response to the State's motion to dismiss (and to the superior court's order limiting his claims). In this response, Grinols argued that his "new evidence" claim ( i.e., his claim that he was not in Ketchikan in February 1991) was actually a claim that he received ineffective assistance from his trial counsel.
Three days later, on September 11, 2009, Judge Carey dismissed Grinols's petition for post-conviction relief in its entirety. With respect to Grinols's claim of new evidence concerning his whereabouts in February 1991, Judge Carey agreed with the State that this evidence was not "newly discovered" and that, in any case, the claim had not been raised in a timely fashion. Judge Carey also noted that, even if this claim was characterized as a claim of ineffective assistance of counsel, the alleged ineffectiveness was on the part of Grinols's trial counsel, and thus the claim was barred under AS 12.72.020(a)(6) (because the claim was presented in a successive petition for post-conviction relief). Finally, Judge Carey concluded that none of Grinols's various other claims could potentially provide a ground for granting post-conviction relief from Grinols's convictions for sexual abuse of a minor.
The issue presented in File No. A-10548
File No. A-10548 is Grinols's appeal of the superior court's decision not to let Grinols file new pleadings in superior court file number 1KE-1999-019 Civ — Grinols's second petition for post-conviction relief, the one that engendered this Court's decision in Grinols III and the Alaska Supreme Court's decision in Grinols IV.
As we explained above, the result of Grinols III and Grinols IV was that all but three of Grinols's claims for post-conviction relief were dismissed because they either had been raised or could have been raised in Grinols's direct appeal, or in Grinols's first petition for post-conviction relief. Of Grinols's three remaining claims, one was actually a claim that he could raise by motion in his underlying criminal case (the claim that his probation was illegally extended). This left two claims for post-conviction relief: a claim relating to the Department of Corrections' calculation of Grinols's release date, and the claim that Grinols received ineffective assistance from the attorney who represented him in the first post-conviction relief litigation.
Grinols III, 10 P.3d at 608-09.
Id. at 607-08.
Id. at 609.
As we also explained above, the superior court dismissed the remainder of Grinols's petition for post-conviction relief in late 2003, and Grinols appealed that dismissal to this Court — but this Court dismissed the appeal a few months later, when Grinols failed to prosecute it.
Then, five years later, Grinols asked the superior court to accept new pleadings in the case — pleadings which raised new claims for relief. Grinols offered only one reason why he should be allowed to re-open the litigation after so many years: he claimed that he had not received the superior court's 2003 order of dismissal.
This claim was patently false: As we explained earlier in this opinion, Grinols (acting pro se) filed an appeal of this 2003 dismissal. He obviously was aware of it. As we noted in LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007), when a court decides whether to dismiss a lawsuit on the pleadings, 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".
Moreover, after this Court's decision in Grinols III and the supreme court's decision in Grinols IV, there were only two post-conviction relief claims that Grinols could pursue — the claim relating to the Department of Corrections' calculation of his release date, and the claim that Grinols received ineffective assistance from the attorney who represented him in the first post-conviction relief litigation — and Grinols's new pleadings did not address either of those issues. Instead, Grinols tried to raise other claims.
For these reasons, we conclude that the superior court acted within its authority when it declined to re-open Grinols's 1999 post-conviction relief case. The issue presented in File No. A-10577
File No. A-10577 is Grinols's appeal of the superior court's dismissal of superior court file number 1KE-2009-034 Civ — Grinols's third petition for post-conviction relief. As we explained above, Judge Carey dismissed this third petition because (1) many of Grinols's requests for relief were beyond the superior court's authority in post-conviction relief litigation and, (2) with respect to Grinols's remaining claims, those claims were barred by the Alaska law prohibiting successive petitions for post-conviction relief. See AS 12.72.020(a)(6).
As we also explained, Judge Carey considered the possibility that one of Grinols's claims (the claim that he had evidence proving that he was not in Ketchikan in February 1991) was potentially not barred because it might be a claim of newly discovered evidence demonstrating Grinols's factual innocence. See A S 12.72.020(b)(2) and Grinols III, 10 P.3d at 616-17. However, Judge Carey ultimately concluded that this claim, too, was barred, after Grinols explained that he was not trying to raise a claim of newly discovered evidence, but rather a claim that his trial attorney had incompetently failed to pursue this potential avenue of defense. It was too late for Grinols to argue that his trial attorney was ineffective on this score — because this claim could have been raised in Grinols's first petition for post-conviction relief.
Moreover, even if Grinols could produce proof that he was physically absent from Ketchikan in February 1991, this would not convincingly demonstrate his innocence. The charges against Grinols encompassed the period from February through mid-June 1991.
For similar reasons, we uphold Judge Carey's refusal to appoint counsel for Grinols. The record gives no reason to believe that an attorney's input would have advanced the superior court's understanding or resolution of Grinols's claims for post-conviction relief.
Conclusion
The judgements of the superior court are AFFIRMED.