Opinion
Court of Appeals No. A-9988.
August 19, 2009.
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge, Trial Court Nos. 2BA-05-00166 CI 2BA-95-00316 CR.
William A. Sakeagak, pro se, Eloy, Arizona. 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, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
William A. Sakeagak challenges the dismissal of his third application for post-conviction relief. (Sakeagak also filed a second, unrelated application for post-conviction relief. That application was dismissed as successive.) We conclude that Superior Court Judge Michael I. Jeffery properly dismissed Sakeagak's third application as successive.
Factual and procedural background
Sakeagak was convicted of first-degree murder. We affirmed Sakeagak's conviction and sentence on direct appeal. Sakeagak later filed a timely pro se application for post-conviction relief (first application). An attorney was appointed to represent Sakeagak. Sakeagak's attorney filed a no-merit certificate, and Sakeagak's first application was dismissed on August 9, 2000. Sakeagak appealed.
Sakeagak v. State, 952 P.2d 278, 280 (Alaska App. 1998).
Id.
Sakeagak v. State (Sakeagak II), Alaska App. Memorandum Opinion and Judgment No. 4539 (March 6, 2002), 2002 WL 341841.
Id.
On appeal, the State conceded that Judge Jeffery had erred in dismissing Sakeagak's application because his attorney's no-merit certificate had not complied with the requirements outlined by this court in Griffin v. State. We remanded Sakeagak's case for further proceedings consistent with the requirements of Griffin.
18 P.3d 71, 77 (Alaska App. 2001) (interpreting Criminal Rule 35.1 to require an attorney to file a "full explanation" of the claims investigated and why the attorney concluded they were frivolous).
Sakeagak II at 3, 2002 WL 341841 at *1.
On remand, a new attorney was appointed to represent Sakeagak. Sakeagak's new attorney filed an affidavit explaining why she agreed with Sakeagak's first attorney's conclusion that Sakeagak did not have any colorable claims. She then filed a supplemental no-merit certificate in which she stated that she did not have a conflict of interest in the case.
After analyzing the information submitted by Sakeagak's new attorney, which included an affidavit from his first attorney, Judge Jeffery "agree[d] with the opinions of the attorneys involved that Mr. Sakeagak's claims ha[d] either been rejected already by the Court of Appeals or that the evidence and record of the trial [did] not support litigating the claims." Judge Jeffery indicated his intent to dismiss the first application for a second time, but gave Sakeagak one month to supplement his application. Sakeagak did not respond by supplementing his first application, so Judge Jeffery dismissed it on January 6, 2003. Sakeagak did not appeal.
On December 22, 2005, almost three years after his first application was dismissed, Sakeagak filed a third pro se application for post-conviction relief. Judge Jeffery dismissed Sakeagak's third application as successive on May 22, 2006. On November 1, 2006, Sakeagak filed a motion for reconsideration, claiming that Judge Jeffery had defied this court's order when he dismissed Sakeagak's first application after remand and that Judge Jeffery had erred in not considering Sakeagak's third application for post-conviction relief on the merits. Judge Jeffery denied Sakeagak's motion.
Why we uphold the dismissal of Sakeagak's application as successive
On appeal, Sakeagak renews his arguments that Judge Jeffery erred in dismissing his first application for post-conviction relief after remand in January 2003, and in not considering his third application for post-conviction relief on the merits.
We conclude that Sakeagak's third application was properly dismissed as successive. It was also untimely.
See AS 12.72.020(a)(6).
See AS 12.72.020(a)(3)(A).
As we already noted, Judge Jeffery gave Sakeagak a chance to supplement his first application before it was dismissed for the second time in January 2003. Sakeagak "provided no comments as to his first application for post conviction relief." Judge Jeffery then dismissed Sakeagak's first application, and Sakeagak did not appeal. Therefore, Judge Jeffery's order dismissing Sakeagak's first application became final.
See Alaska R. App. P. 204(a)(1) (time for filing an appeal).
If Sakeagak wanted to challenge the renewed dismissal of his first application after remand, his proper remedy was an appeal of that dismissal. He failed to appeal that decision. Sakeagak cannot use a third (successive and untimely) application for post-conviction relief to challenge Judge Jeffery's dismissal of his first application. Conclusion
Cf. Higgins v. Briggs, 876 P.2d 539, 543 (Alaska App. 1994) ("Neither a petition for writ of habeas corpus nor a petition for post-conviction relief was intended to take the place of a direct appeal.").
The order of the superior court dismissing Sakeagak's third application for post-conviction relief is AFFIRMED.