Hertz v. State

Full title: SIDNEY R. HERTZ, Appellant, v. STATE OF ALASKA, Appellee

Court: Court of Appeals of Alaska

Date published: Mar 25, 2009

Court of Appeals No. A-10183 (Alaska Ct. App. Mar. 25, 2009)

Opinion

Court of Appeals No. A-10183.

March 25, 2009.

Appeal from the Superior Court, Third Judicial District, Anchorage, Sharon L. Gleason, Judge, Trial Court No. 3AN-08-4574 CI.

Sidney R. Hertz, pro se, Palmer, Alaska, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, Bolger, Judge, and Stewart, Senior Court of Appeals Judge.^_ [Mannheimer, Judge, not participating.]

_ Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

MEMORANDUM OPINION AND JUDGMENT

BOLGER, Judge.Page 2

Sidney R. Hertz was convicted of murder in the second degree.¹ His conviction became final shortly after this court affirmed his conviction and sentence in 1986.²

1 AS 11.41.110.

2 Hertz v. State, Memorandum Opinion and Judgment No. 1225 (Alaska App. Sept. 10, 1986), 1986 WL 1161056.

In January 2008, Hertz filed a petition for a writ of habeas corpus arguing that the jury instruction for second degree murder at his criminal trial had changed an element of the offense and thereby invalidated the indictment. We previously rejected a similar attack on this jury instruction when Hertz appealed his conviction.³ Superior Court Judge Sharon L. Gleason treated the petition as an application for post-conviction relief and dismissed the petition on procedural grounds.

3 Id. at 4-6, 1986 WL 1161056 at *2.

Judge Gleason correctly recognized that she was required to treat Hertz's petition for a writ of habeas corpus as an application for post-conviction relief.⁴ She also correctly recognized that he was not entitled to bring another application for post-conviction relief because he had filed at least six prior post-conviction relief applications.⁵ She also properly recognized that Hertz's application was untimely because it was filed long after the applicable statute of limitations.⁶

4 See Hertz v. State, 8 P.3d 1144, 1146-48 (Alaska App. 2000); Alaska R. Civ. P. 86(m).

5 See Hertz, 8 P.3d at 1145-46; AS 12.72.020(a)(6).

6 See AS 12.72.020(a)(3).

Article I, Section 13 of the Alaska Constitution provides in relevant part: "The privilege of the writ of habeas corpus shall not be suspended. . . ." On the one hand, we have previously stated in dicta that, "Arguably, if a post-conviction relief applicant raised a claim that the underlying criminal judgment was void, a procedural bar under AS 12.72.020(a) might be unconstitutional."⁷ On the other hand, we have also recognized that the common law writ of habeas corpus addresses a limited remedy: It permits an incarcerated criminal defendant to test the jurisdiction of the sentencing court.⁸

7 Hertz, 8 P.3d at 1148 (footnote omitted).

8 See Flanigan v. State, 3 P.3d 372, 374-76 (Alaska App. 2000).

The jury-instruction claim that Hertz raises is not the type of jurisdictional claim that would render his judgment void. Therefore, the Suspension Clause did not prevent the superior court from applying the procedural bars in AS 12.72.020(a) when it dismissed Hertz's application.

Judge Gleason also denied Hertz's request for appointed counsel. An applicant for post-conviction relief generally is not entitled to appointed counsel for an untimely or successive application.⁹

9 See AS 18.85.100(c)(1).

We have previously recognized that the Due Process Clause of the Alaska Constitution gives courts the authority to appoint counsel for a second application for post-conviction relief when the applicant alleges ineffective assistance of counsel by the attorney who represented them on their first application.¹⁰ But this holding does not apply to Hertz, because this is neither his second application for post-conviction relief, nor is he alleging that he received ineffective assistance of counsel for his first application.

10 See Grinols v. State, 10 P.3d 600, 623-24 (Alaska App. 2000).

We have also recognized that an indigent defendant pursuing a first application for post-conviction relief is entitled to the assistance of counsel for the purpose of assessing and arguing whether the application is timely.¹¹ But this holding does not apply to Hertz, because this is not his first application. We have never held that an applicant is constitutionally entitled to the appointment of counsel for such a repetitive application, that is so obviously untimely. We decline to do so today.

11 See Holden v. State, 172 P.3d 815, 817-18 (Alaska App. 2007).

We therefore AFFIRM the superior court's judgment.