Opinion
Court of Appeals No. A-8814.
March 8, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge. Trial Court No. 3AN-01-7101 CI.
Colleen A. Libbey, Libbey Law Offices, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Tommie G. Patterson appeals the dismissal of his seventh application for post-conviction relief. On December 6, 2000, we issued an opinion affirming the dismissal of Patterson's sixth application for post-conviction relief. Patterson petitioned for hearing in the supreme court, but before the supreme court ruled on the petition, Patterson filed his seventh application.
See Patterson v. State, Alaska App. Memorandum Opinion and Judgment No. 4314 (December 6, 2000), 2000 WL 1781744.
Superior Court Judge Dan A. Hensley dismissed the seventh application, finding that Patterson had not been diligent in pursuing his newly discovered evidence claim, ruling that the application was successive and untimely, and rejecting Patterson's claim that the State violated due process by failing to preserve physical evidence after Patterson was convicted. For the reasons expressed below, we affirm Judge Hensley's dismissal of Patterson's seventh application.
Facts and proceedings
A jury convicted Patterson of six counts arising out of an incident in 1981: one count of first-degree sexual assault, one count of kidnapping, three counts of third-degree assault, and one count of fourth-degree assault. Superior Court Judge Ralph E. Moody imposed a composite 41-year term. Patterson appealed his convictions and sentence. We affirmed Patterson's convictions but vacated the sentence and directed the superior court to impose a sentence not to exceed 30 years.
See Patterson v. State, 689 P.2d 146, 147 (Alaska App. 1984).
See id. at 150.
Id. at 152.
On remand from that appeal, Judge Moody imposed a composite 31-year term. Patterson did not appeal, but he did file his first application for post-conviction relief. Superior Court Judge Mark C. Rowland rejected all the substantive claims that Patterson raised in that application except his objection to the 31-year term. Because that composite term violated this court's mandate in Patterson's appeal, Judge Rowland granted post-conviction relief. In a written decision dated April 26, 1990, Judge Rowland ordered that Patterson's sentence be reduced to a 30-year term and immediately issued an amended judgment in the criminal case.
See Patterson, Memorandum Opinion and Judgment No. 4314 at 2, 2000 WL 1781744 at *1.
Patterson filed the application in question here, his seventh application, in April 2001. In February 2003, Patterson moved for an order requiring the State to produce the biological evidence obtained in the case for DNA testing and requested leave to amend his application upon completion of the testing. The superior court granted the motion and ordered the State to produce the biological evidence, if it was available. The State notified the court that the biological evidence had been destroyed. Accordingly, DNA testing was impossible. None of Patterson's previous applications raised the issue of DNA testing or the State's preservation of evidence.
Patterson amended his application in June 2003, arguing that the State's failure to preserve the biological evidence for DNA testing violated his due process rights under the U.S. and Alaska constitutions. Patterson claimed that he was entitled to post-conviction relief because the State failed to preserve the evidence. The State maintained that Patterson's application was barred by statute because it was successive and untimely. Patterson responded that his claim was not time barred because the State's destruction of the biological evidence qualified as "new evidence" under AS 12.72.020(b)(2), an exception to the statute of limitations for post-conviction relief applications. Patterson further argued that due process required the court to hear any successive application concerning DNA evidence.
Judge Hensley denied Patterson's amended application. Judge Hensley found that the newly-discovered evidence exception to the statute of limitations on post-conviction relief did not apply because the State's failure to preserve the biological evidence was not "newly discovered evidence" and Patterson failed to show "due diligence" in pursuing DNA testing. Judge Hensley also ruled that Patterson's application was barred because it was untimely and successive. Finally, while Judge Hensley recognized that the State was required to preserve evidence for Patterson's trial, the judge found no duty to preserve the evidence after Patterson's conviction was final.
See AS 12.72.020(a)(3)(A) (a)(6).
Patterson appeals the dismissal of his seventh application.
Patterson's application is barred because it is a successive application
Under AS 12.72.020(a)(6), a defendant may not file a successive application for post-conviction relief if a previous application has already been filed. In Grinols v. State, we ruled that the absolute bar on successive post-conviction relief applications is generally consistent with the Alaska Constitution's guarantee of due process of law. Still, we noted that due process may require review of a successive application in limited situations where "failure to consider the claim would `result in a fundamental miscarriage of justice' — as, for example, `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Speaking specifically about DNA evidence, we predicted that due process under the Alaska Constitution would require a court to hear a successive application where "a defendant . . . obtained clear genetic evidence of . . . innocence."
10 P.3d 600 (Alaska App. 2000).
Grinols, 10 P.3d at 615.
Grinols, 10 P.3d at 615 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986)).
Grinols, 10 P.3d at 617 (emphasis added).
There appears to be no such right under the federal constitution. In Herrera v. Collins, the United States Supreme Court upheld the constitutionality of Texas's 30-day time limit on motions for a new trial based on newly discovered evidence. The Court upheld the time limit even when there is no other statutory remedy available for bringing a claim of actual innocence. The Court also held that newly discovered evidence relevant to a prisoner's guilt is not a ground for relief under the federal Habeas Corpus Act: "[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact."
506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993).
Id. at 400, 411, 113 S. Ct. at 860, 866.
Id. at 400, 113 S. Ct. at 860.
In 1995, the Alaska Legislature enacted AS 12.45.035 to address the admissibility of DNA evidence. Thus, DNA evidence was well recognized when Patterson filed his sixth application for post-conviction relief in 1997, and, as Judge Hensley found, Patterson could have included his current claims in that application. Moreover, because there was no specimen available for testing, Patterson did not provide clear genetic evidence of his innocence. Thus, we agree with Judge Hensley that Patterson's case does not fall into the narrow exception outlined in Grinols.
Ch. 7, § 2, SLA 1995.
Patterson argues that due process requires an expansion of the Grinols exception to allow successive applications when biological evidence is destroyed before DNA analysis can be performed. Patterson requests this Court find that, when biological evidence is destroyed post conviction, a court should hear a post-conviction relief application on the merits and conduct a destruction-of-evidence inquiry.
In Grinols, we predicted that due process might require allowing successive applications to rectify a constitutional violation resulting in the conviction of an innocent person. But Patterson's case does not present a constitutional violation. Due process requires the State to maintain evidence before and during a trial, and failure to do so may result in a destruction-of-evidence hearing. But, as Patterson acknowledges, Alaska has not extended this duty to preserve evidence after conviction. Because Patterson could have raised the DNA issue in a previous application but failed to, this situation also does not present the kind of "fundamental miscarriage of justice" contemplated in Grinols.
Grinols, 10 P.3d at 615; see also Osborne v. State, 110 P.3d 986, 993 (Alaska App. 2005).
Lauderdale v. State, 548 P.2d 376, 381-82 (Alaska 1976); see also Alaska R. Crim. P. 16(b).
Grinols, 10 P.3d at 615.
Alaska law requires the State to make available to criminal defendants evidence gathered in a criminal investigation that may prove important in the preparation of the accused's defense. Patterson urges this court to apply the procedure for determining appropriate sanctions for the destruction of evidence that the Alaska Supreme Court outlined in Thorne v. Department of Public Safety. But the factors outlined in Thorne were applied based on a violation of Thorne's due process rights stemming from his right to a fair trial (the evidence in Thorne's case was destroyed before an administrative hearing took place). Because the biological evidence in this case was destroyed well after Patterson was tried and convicted, Patterson's due process right to a fair trial is not implicated and the destruction-of-evidence analysis applied in Thorne is not appropriate.
Thorne v. Dep't Pub. Safety, 774 P.2d 1326, 1330 (Alaska 1989); Alaska R. Crim. P. 16(b).
774 P.2d 1326, 1331 (Alaska 1989).
See Thorne, 774 P.2d at 1330 n. 8; see also Lauderdale, 548 P.2d at 381-82 (the State's failure to preserve breathalyzer ampoules, which may have provided scientifically reliable data bearing on guilt or innocence, is a violation of the due process right to fair trial); Maloney v. State, 667 P.2d 1258, 1263-67 (Alaska App. 1983); Carman v. State, 658 P.2d 131, 139-40 (Alaska App. 1983).
Patterson's application is barred because it is an untimely application
Under AS 12.72.020(a)(3)(A), an application for post-conviction relief must be brought within 1 year of an appeal becoming final. Nevertheless, defendants whose convictions were entered before July 1, 1994 had until July 1, 1996 to file applications for post-conviction relief. Under subsection (b)(2), applications may be filed beyond this time bar if the claim is "based on newly discovered evidence if the applicant establishes due diligence in presenting the claim" and the evidence "establishes by clear and convincing evidence that the applicant is innocent."
See Ch. 79, §§ 40-41, SLA 1995.
AS 12.72.020(b)(2).
Patterson's conviction was entered before July 1, 1994; therefore, he had until July 1, 1996 to file an application for post-conviction relief under AS 12.72.010. Because the current application was filed outside that window, Patterson must attempt to gain the exception described above. Patterson argues the discovery that his biological evidence was destroyed constitutes new evidence, and that he was diligent in raising the destruction claims because he raised them as soon as he discovered the evidence had been destroyed.
See Patterson, Memorandum Opinion and Judgment No. 4314 at 2, 2000 WL 1781744 at *1 (Patterson's final conviction was entered on April 26, 1990).
Patterson misconstrues the due diligence requirement set forth in AS 12.72.020(b)(2). Patterson apparently assumes the due diligence requirement applies only to filing an application for post-conviction relief and not to the discovery of the evidence itself. Here, Judge Hensley noted that Patterson had contested the biological evidence at trial. While DNA analysis was a developing method of analyzing biological evidence, it was recognized and available in 1997 when Patterson filed his immediately previous application for post-conviction relief. If Patterson had brought the DNA analysis request as part of his previous application for relief, he would have either discovered the evidence had been destroyed or (assuming the evidence had not yet been destroyed) he would have been able to request production of evidence. Therefore, regardless of whether the DNA analysis or the destruction of the evidence is considered newly discovered evidence for purposes of the exception, the record supports Judge Hensley's finding that Patterson failed to diligently pursue the claim as required by AS 12.72.020(b)(2).
See AS 12.45.035.
In summation, we agree with Judge Hensley that Patterson's application was successive and untimely. We uphold Judge Hensley's ruling that Patterson had not exercised due diligence and that, notwithstanding the lack of diligence, the destruction of the biological evidence was not newly discovered evidence.
Conclusion
The judgment of the superior court is AFFIRMED.