Opinion
A-13479 0311
02-22-2023
CHARLES ZACHERY ALEX WASKEY, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District Trial Court No. 3NA-17-00002 CI, Naknek, Christina Reigh, Judge.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Charles Zachery Alex Waskey appeals the dismissal of his application for post-conviction relief as untimely. Under AS 12.72.020(a)(3)(A), Waskey had one year from the time his conviction was final on direct appeal to file an application for postconviction relief, and Waskey missed this deadline by fifteen months. But Waskey asserted that his late filing should be excused on the grounds that his appellate attorney was ineffective for failing to inform him about the possibility of seeking post-conviction relief, and the accompanying deadline for doing so. The superior court rejected this argument and granted the State's motion to dismiss. Waskey now appeals.
We have previously acknowledged that Alaska law is unsettled with regard to the question of whether an appellate attorney has a duty to inform a client about postconviction relief and its limitations period. But assuming such a duty exists, a defendant's failure to meet a filing deadline would only be excused if they can show that "but for the defense attorney's unreasonable failure to consult with the defendant about [post-conviction relief], the defendant would have filed a timely [application]."
State v. Carlson, 440 P.3d 364, 380 (Alaska App. 2019).
Id. (citing Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)).
Here, Waskey asserted that his appellate attorney failed to advise him about the availability of post-conviction relief and the associated deadline for seeking that relief. But he never asserted that this failure was the reason why he failed to timely file an application for post-conviction relief; indeed, his affidavit is silent as to this point. Waskey provided no indication of when or how he learned about post-conviction relief and its limitations period, or what efforts he took to file a post-conviction relief application after learning about the procedure. Thus, Waskey failed to set forth a prima facie case that his failure to timely file was caused by his attorney's failure to consult with him about the possibility of post-conviction relief, rather than his own lack of diligence in pursuing his claims.
The judgment of the superior court is AFFIRMED.