Opinion
Court of Appeals No. A-12851 No. 6673
08-15-2018
RICHARD D. POMEROY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Richard D. Pomeroy, in propria persona,
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 authority for any proposition of law. Trial Court No. 3AN-17-4818 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Mark Rindner, Judge. Appearances: Richard D. Pomeroy, in propria persona, Anchorage, Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge ALLARD.
In 2005, Richard D. Pomeroy pleaded no contest to third-degree assault. In the years that followed, Pomeroy filed various pro se applications for post-conviction relief. In 2017, Pomeroy, again acting pro se, filed what he styled a petition for "writ of error coram nobis." The superior court treated Pomeroy's pleading as an application for post-conviction relief under Alaska Criminal Rule 35.1, and the court ultimately granted the State's motion to dismiss on the grounds that the application was untimely, successive, and collaterally estopped.
Pomeroy v. State, 258 P.3d 125, 126 (Alaska App. 2011).
Id.; Pomeroy v. State, 2015 WL 1285700, at *1 (Alaska App. Mar. 18, 2015) (unpublished).
Pomeroy now appeals this dismissal, raising several claims of error. Pomeroy argues first that the superior court erred in dismissing his petition as untimely under Alaska law because, under federal law, there is no statute of limitations that governs a petition for writ of error coram nobis. But under Alaska law, a petition for writ of error coram nobis is treated as an application for post-conviction relief. Except for certain narrow potential exceptions not relevant here, Alaska Criminal Rule 35.1 supersedes the use of common law writs in the Alaska courts.
Cf. Kovacs v. United States, 744 F.3d 44, 54 (2d Cir. 2014) (noting that a petition for writ of error coram nobis filed under 28 U.S.C. 1651(a) is not governed by any statute of limitations but the petitioner is nevertheless required to demonstrate "sound reasons" for any delay in seeking relief).
See Alaska R. Crim. P. 35.1(b); cf. Alaska R. Civ. P. 86(m) (requiring the trial court to treat petitions for writ of habeas corpus as applications for post-conviction relief under Criminal Rule 35.1); Fisher v. State, 315 P.3d 686, 687 (Alaska App. 2013). But see Hertz v. State, 8 P.3d 1144, 1148 (Alaska App. 2000) (recognizing that a person held under a void judgment can seek redress in habeas corpus and that applying post-conviction relief statute of limitations in such situations would arguably be unconstitutional).
The superior court therefore acted properly when it treated Pomeroy's petition as an application for post-conviction relief under Alaska law and when it applied the statutory deadline for such applications to Pomeroy's petition. The superior court likewise acted properly when it dismissed Pomeroy's petition as successive and procedurally barred. As already noted, Pomeroy has previously filed an application for post-conviction relief, and the claims raised here (to the extent they are legally cognizable as post-conviction relief claims) could have been litigated in these earlier proceedings.
AS 12.72.020(a)(2); AS 12.72.020(a)(6); see also Larson v. State, 254 P.3d 1073, 1077 (Alaska 2011) (res judicata "precludes relitigation by the same parties, not only of claims raised in [a prior] proceeding, but also those relevant claims that could have been raised"). --------
On appeal, Pomeroy asserts that he has been unfairly disadvantaged by his pro se status. But Pomeroy was given multiple opportunities in his earlier post-conviction relief litigation to have counsel appointed to assist him in properly litigating any post-conviction relief claims that he might have. Indeed, during this earlier post-conviction relief litigation, this Court twice remanded Pomeroy's case to the trial court to ensure that Pomeroy understood the rights and benefits he was giving up by insisting on proceeding pro se.
Because we find no error in the superior court's handling of Pomeroy's petition or its dismissal of the petition on various procedural grounds, we AFFIRM the judgment of the superior court.