Dick Sky v. State of Alaska, Department of Corrections

• Court: Court of Appeals of Alaska
• Decided: July 8, 2026
• Docket: A-14705
• Status: Unpublished

Opinion

2026 WL 1970884

Only the Westlaw citation is currently available.

NOTICE: UNPUBLISHED OPINION

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, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).

Court of Appeals of Alaska.

DICK SKY, Appellant,

v.

STATE OF ALASKA, DEPARTMENT OF CORRECTIONS, Appellee.

Court of Appeals No. A-14705

July 8, 2026

Trial Court No. 1JU-22-00771 CI

Appeal from the Superior Court, First Judicial District, Juneau, Marianna C. Carpeneti, Judge.

Attorneys and Law Firms

Appearances: Dick Sky, in propria persona, Palmer, Appellant. Cameron Q. Jimmo, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

MEMORANDUM OPINION

Judge WOLLENBERG.

*1 Dick Sky appeals from the superior court's denial of his petition for writ of habeas corpus. In his petition, Sky — who is serving a sentence for multiple counts of sexual abuse of a minor and sexual exploitation of a minor — argued that his incarceration during the existence of COVID-19 constitutes cruel and unusual punishment and violates his due process rights.

On appeal, Sky raises several issues. First, Sky argues that the superior court misapplied the procedure governing habeas corpus set out in Alaska Civil Rule 86. Second, Sky argues that the superior court judge who adjudicated his petition was biased and should have recused herself. Finally, Sky argues that the court erred in denying his request for unmonitored communications with his wife (who was originally part of this litigation and incarcerated at the time) and in ultimately denying his petition.

For the reasons discussed in this opinion, we reject Sky's claims and affirm the superior court's denial of his petition for writ of habeas corpus.

Background facts and proceedings

In 2002, following a jury trial, Dick Sky and his wife, Cynthia Sky, were convicted of working in concert to commit numerous sex offenses against multiple minor victims. Sky was convicted of thirty-eight counts of first-degree sexual abuse of a minor, one count of attempted first-degree sexual assault of a minor, and two counts of sexual exploitation of a minor, and he was sentenced to a composite term of 75 years with 20 years suspended (55 years to serve).¹ Cynthia Sky was convicted of twenty-nine counts of first-degree sexual abuse of a minor, one count of attempted first-degree sexual assault of a minor, and two counts of sexual exploitation of a minor, and she received a composite sentence of 36 years with 10 suspended (26 years to serve).

Sky is currently serving his sentence in the custody of the Department of Corrections (DOC). (Cynthia, who was originally part of this litigation, has been released from custody to supervision and has withdrawn from this litigation.)

On August 16, 2022, Sky filed a pleading with the superior court entitled “Application for Enforcement of Constitutional Rights.”² Sky also filed a motion to proceed at public expense. In his substantive pleading, Sky argued that keeping him incarcerated during the COVID-19 pandemic constituted cruel and unusual punishment under the United States and Alaska Constitutions because he was over sixty years old with underlying health conditions.³ He also contended that the risk to his health caused him “to live in a state of constant fear and anxiety.” He sought release from DOC custody to probation status. Sky also explained that he was not challenging his convictions as part of this action (but rather as part of a separate post-conviction relief proceeding).

*2 Even though Sky was not challenging the validity of his judgment or the basis for his incarceration, the court construed the filing as a petition for habeas corpus.⁴ According to a later pleading filed by Sky, he informed court staff that he did not object to the characterization of the application as a petition for writ of habeas corpus.

The case, which was initially assigned to Superior Court Judge Amy Mead, was subsequently reassigned to Superior Court Judge Marianna C. Carpeneti.

In early September 2022, Judge Carpeneti issued a request for additional information in relation to Sky's motion to proceed at public expense. The court noted that, although AS 09.19.010(c) allowed the court to grant a partial exemption of the filing fee applicable to prisoners filing a lawsuit against the State, a prisoner filing such a lawsuit is statutorily required to file certain documents in support of an exemption request.⁵ The court gave Sky thirty days to file the necessary documents to enable the court to evaluate his motion to proceed at public expense.

About a week later, Sky filed a pleading entitled “Notice of Grounds for Recusal.” In the pleading, Sky argued that the superior court failed to comply with Alaska Civil Rule 86(c)(1), which requires a court presented with a complaint seeking habeas corpus relief to take one of three actions — issue the writ and order the person having custody of the prisoner to answer the writ, issue an order to show cause why the writ should not be issued, or issue a warrant in lieu of habeas corpus — “unless it appears that the [petitioner] is not entitled to that relief.”⁶ Sky also cited Civil Rule 86(j), which provides that, in an action seeking a writ of habeas corpus, “[t]he court shall proceed in a summary manner to hear the matter and render judgment accordingly.”⁷ Sky maintained that the superior court's failure to “immediately proceed to hear the matter” demonstrated the judge's bias.

Judge Carpeneti issued an order treating Sky's notice as a motion for recusal and denying the motion, stating that the court's rulings did not constitute evidence of bias or reflect an appearance of impropriety. Pursuant to AS 22.20.020(c), the court's order was referred to another judge for review. Upon review, Superior Court Judge Kirk Schwalm affirmed Judge Carpeneti's order that there was no basis for recusal.

*3 Sky filed the requisite documents in support of his request for a filing fee exemption.⁸ On December 5, 2022, the superior court granted Sky's request for a filing fee exemption in part and ordered the reduced fee to be paid within thirty days of distribution of the order. Sky timely paid the reduced filing fee.

Sky also filed a motion for leave to amend his original complaint. The superior court granted this motion and ordered Sky to file his amended complaint by March 24, 2023.

Prior to that date, Sky filed a “Notice of Respondents’ Interfering with Litigation, and, Request for Order Restoring Status Quo Ante Between Parties.” Sky argued that he was entitled to have privileged phone calls and mail communication with his wife, Cynthia, because (at the time) they were both representing themselves in this litigation and, according to Sky, were therefore “de facto co-counsel.” (As with all other pleadings in the superior court in this litigation, Cynthia jointly filed this motion.) Sky argued that DOC was intentionally interfering with this litigation by requiring DOC employees to monitor any phone calls or mail communications between them and by reducing the number of phone calls they were permitted to have.

DOC responded, asserting that the motion should be treated as a request for a preliminary injunction and arguing that Sky had failed to meet the standard for an injunction under Civil Rule 65(a).⁹

Sky filed an amended complaint entitled “Petition for Writ of Habeas Corpus.” In this pleading, Sky made substantively the same claims as he made in his initial filing. Sky asserted that incarcerating him during the COVID-19 pandemic constituted cruel and unusual punishment and violated his due process rights. Sky now asserted that he was entitled to unconditional release from custody, but he continued to state that he was not challenging the validity of his convictions or underlying criminal judgment as part of this action.

As we noted above, under Alaska Civil Rule 86(c), upon the filing of a complaint seeking a writ of habeas corpus, the court shall take one of three actions, unless it appears that the petitioner is not entitled to that relief. The court took one of those actions, issuing an order directing the superintendent of Goose Creek Correctional Center to file a response to Sky's petition within sixty days and show cause why the writ should not be issued. Sky asked the court to shorten the sixty-day deadline, but the court did not do so.

DOC, represented through the Department of Law, filed an answer to the petition, arguing that the court should deny Sky's petition for a writ of habeas corpus.¹⁰ DOC argued, inter alia, that a writ of habeas corpus was an inappropriate remedy given that another remedy (a civil action) was available to Sky and that Sky had not shown that his detainment was illegal, improper, or that there were any grounds supporting his request for unconditional release.¹¹ DOC acknowledged the ongoing mental health stress and anxiety caused by the COVID-19 pandemic but argued that this type of stress, experienced by many, did not rise to the level of cruel and unusual punishment. DOC also maintained that Sky's unconditional release would not remedy this concern, would present separation of powers issues, and would place the public at unacceptable risk.

*4 The superior court subsequently issued a written order denying Sky's motion to restore the status quo ante and denying his petition for a writ of habeas corpus. Sky now appeals.

Why we affirm the superior court's denial of Sky's application

On appeal, Sky raises several claims, but each of these claims relates in some way to his overarching assertion that the superior court denied him fair process by failing to follow proper habeas corpus law and procedure from the outset of the case.¹² We address each of Sky's claims in turn.

Why we reject Sky's claim that the superior court failed to follow the habeas corpus procedures set out in Alaska Civil Rule 86, thus violating his right to due process

On appeal, Sky argues that the superior court violated his due process rights by failing to issue a writ or an order to show cause under Alaska Civil Rule 86 immediately upon the filing of his initial pleading and instead requesting that Sky provide additional documentation to support his motion to proceed at public expense. Sky argues that the administrative decision by the presiding judge (and the clerk's office) to treat his initial filing as a petition for writ of habeas corpus was a court order acknowledging the merits of his claims and that the superior court then had no discretion to delay the procedure set out in Civil Rule 86(c).

But in order to proceed on “litigation against the state,” a prisoner is required to pay a filing fee under AS 09.19.010(a).¹³ “Litigation against the state” is defined, in relevant part, as “a civil action” that “is related to a person's status or treatment as a prisoner, to a criminal charge against or involving the person, or to an alleged violation of the person's constitutional rights.”¹⁴ Sky offers no support for the notion that a complaint against the State alleging that one's imprisonment violates the Eighth Amendment's prohibition on cruel and unusual punishment fails to meet this definition, or that the superior court's application of the filing fee requirement deprived him of due process.

In lieu of paying the full filing fee, Sky filed a motion to proceed at public expense. The court construed the motion as a request for an exemption from the filing fee — a remedy the court was entitled to grant only upon the filing of certain documentation required by statute. By requesting this additional documentation — including an affidavit by Sky setting out his financial situation and a certified copy of his prisoner account statement for the six months preceding the filing of his complaint¹⁵ — the court was ensuring Sky's access to the courts.¹⁶ In the absence of the additional information or payment of the fee, the court was precluded from allowing Sky to proceed at public expense.¹⁷

*5 Sky argues that the superior court violated his due process rights because the court delayed proceeding on the merits of his petition for five months while it was addressing his motion to proceed at public expense. But by requesting additional information from Sky, the superior court was affording him the legal process necessary to resolve his motion. Moreover, although Civil Rule 86(j) provides that the court should proceed “in a summary manner” in a habeas action, the rule does not set deadlines for when the procedures must occur and it does not require courts to proceed in a habeas action regardless of whether the parties have complied with all statutory filing requirements.¹⁸

There may be circumstances in which a filing fee presents an unconstitutional barrier to accessing the courts,¹⁹ or where expedited consideration is necessary.²⁰ But here, Sky was able to pay the reduced filing fee.

And ultimately, Sky received an adverse ruling on the merits of his claim. Even if implementation of the procedure set out in Civil Rule 86(c) had been unduly delayed, Sky would not now be entitled to the substantive relief he ultimately seeks — release from custody.²¹

For these reasons, we reject Sky's claim that the court's procedure violated his due process rights and entitles him to relief.

Why we reject Sky's claim that the judge was biased and that recusal was required

Sky argues that Judge Carpeneti's failure to immediately implement the habeas procedure outlined in Civil Rule 86(c) demonstrates that she was biased against him and should have recused herself from participating in this case.²² But there is no evidence in the record that the judge was biased, and when Sky moved for recusal, he did not point to anything to support his claim beyond the five-month delay caused by his failure to initially file the forms required to support a partial filing fee exemption.

On appeal, Sky raises several new arguments as to why the superior court acted unfairly following the denial of the recusal motion.

First, Sky asserts that he was transferred to another facility during the pendency of this habeas action and that, in the process of transferring Sky, DOC took his legal files and did not return them for nearly three months. Sky argues that the court should have acted sua sponte to address the transfer and that the court violated Civil Rule 86 by failing to order a hearing to do so.

*6 But contrary to Sky's assertion, Civil Rule 86 does not prohibit DOC from transferring a prisoner who has filed a habeas action. Civil Rule 86(g)(1)(b) requires only that the respondent explain in its answer “[i]f the prisoner has been transferred, to whom, when the transfer was made, and the reason and authority therefor.”²³ The court's failure to sua sponte inquire further into this issue did not plainly demonstrate bias.

Second, Sky argues that the judge's bias was evident in her failure to grant his motion to strike the portions of DOC's answer that were noncompliant with Civil Rule 86(g). But Sky only makes generalized assertions that DOC made improper legal arguments and factual assertions, and a review of the answer does not reveal any obviously improper arguments.

Finally, Sky contends that the judge's decision to give DOC “almost three months to file its response” demonstrated bias.²⁴ Sky did object in the trial court to affording the State this length of time, but he did not argue that it was evidence of the judge's bias. And the bare fact that the court gave the State additional time to respond does not indicate that the judge was biased or lacked impartiality.

We note that a judge is not disqualified from presiding over a case merely because the judge has made adverse rulings against a party.²⁵ Here, Sky's claims hinge on his assertion that the judge's failure to comply with habeas procedure demonstrated her bias. But for the reasons stated above, we find no obvious deviation from the habeas procedures. And in any event, there is no evidence from these rulings that the judge was biased against Sky.

For these reasons, we uphold Judge Carpeneti's denial of Sky's recusal motion and Judge Schwalm's affirmance of that ruling.

Why we affirm the denial of Sky's motion to preserve the status quo and his petition for a writ of habeas corpus

Lastly, Sky challenges the denial of his motion to preserve the status quo and his petition for habeas corpus. Sky argues that the superior court's order denying his request to restore the status quo with regards to his communications with Cynthia and dismissing Sky's habeas petition was unfairly decided.

The superior court denied Sky's request to restore unmonitored communications of greater frequency with his wife, Cynthia. The court rejected Sky's claim that the DOC rules governing their communication interfered with his right to consult with counsel because there was no right to counsel between two pro se litigants, and neither he nor Cynthia was precluded from obtaining an attorney. The court also rejected the notion that Sky's communications with Cynthia were legally privileged, noting that there was no attorney-client relationship between them and that their constitutional right to communicate as a married couple was protected by a separate court order requiring the parole board to allow some communication. The court further ruled that spousal privilege (an evidentiary rule) did not require DOC to supply a certain frequency of phone calls or refrain from monitoring communications for legitimate penological goals and that DOC had not denied the Skys meaningful access to the courts. Finally, the court concluded that more frequent and unmonitored phone calls were not warranted under a preliminary injunction analysis.

*7 Sky challenges this ruling on appeal, but this claim is moot. Cynthia Sky is no longer part of this litigation. Sky does not argue that his ability to litigate his application was ultimately affected by the limitations DOC placed on his communication with Cynthia, and thus, there is no remedy this court could afford Sky at this point, given that he and Cynthia are no longer jointly litigating this case.²⁶ We therefore reject this claim.

Sky also argues that the court unfairly denied his habeas petition. The superior court rejected Sky's constitutional claim, concluding that, while “COVID-19 poses ‘a serious medical need’ to prison populations in a general sense, ... [the] petitioner's risk of contraction is not a serious medical need in an Eighth Amendment context.” The court acknowledged that contracting COVID-19 could result in a significant injury to anyone, but noted that Sky had not claimed to have contracted COVID-19 or that DOC had failed to mitigate the risk of harm. Accordingly, the court found that the risk to petitioners “by definition [was] inchoate” and was really that of “existential psychological harm.”

The superior court continued:

The Skys argue that subjection to this fear forces them to endure “extreme suffering” with no penological goal in mind. But confining those found guilty of serious crimes in order to deter future crime is a legitimate penological goal. The Skys do not allege that the Department of Corrections has ignored a serious, particularized mental health crisis brought on by the risk of COVID-19. They allege a state of anxiety felt to a greater or lesser extent by every person alive during the pandemic.

On appeal, Sky's main claim appears to be that the court employed unfair procedures in reaching this ruling — in particular, that the court acted improperly by issuing an order to show cause requesting an answer from DOC only to ultimately conclude that his petition never stated a claim for relief in the first place.

But a court is not required to grant the relief requested in a petition simply because the court requests an answer to that petition. There is no indication in the record that, by issuing the order to show cause, the court accepted as valid all the claims alleged in the petition — and the court's ultimate denial of the petition demonstrates it did not.

Sky also faults the court (and the State) for reframing his claim as one involving inadequate medical care by DOC. Sky expressly disclaims that he is raising such a claim. Rather, Sky argues that, regardless of the steps DOC has taken to mitigate the effects of COVID-19, “due to [the Skys’] ages and underlying health conditions[,] there is no jail or prison where the Skys could be incarcerated that would be constitutional” since prisoners must necessarily congregate.

But we view the court's references to inadequate medical care as simply restating the general law in this area and attempting to frame a potentially viable Eighth Amendment claim based on existing jurisprudence and the substance of Sky's argument. The superior court noted that the Eighth Amendment “imposes a duty on prison officials to provide ‘humane conditions of confinement,’ including access to adequate medical care.”²⁷ The court explained that, in order to prevail on a claim that prison officials unconstitutionally failed to treat an inmate's condition, “an inmate must first show a serious medical need by demonstrating that failure to treat the condition could result in ‘further significant injury or the unnecessary and wanton infliction of pain.’ ”²⁸ (The United States Supreme Court has described “ ‘unnecessary and wanton’ inflictions of pain” as including “those that are ‘totally without penological justification.’ ”²⁹) As the superior court further noted in its order, “[T]he inmate must then show that prison officials were deliberately indifferent to that need” — in other words, that the officials knew of and disregarded “an excessive risk to inmate health and safety.”³⁰

*8 Ultimately, the court disagreed with Sky's claim that enduring the risk of contracting COVID-19 — and the attendant state of anxiety such risk posed — outweighed the legitimate penological goal of confining Sky in light of his serious crimes.

Sky contends that the court ignored the factual record regarding his particular risk level. But the court specifically found that, while Sky cited “chronic pneumonic illnesses, cirrhosis of liver, arrythmia, circulatory degeneration, arterial damage, and cardiovascular episodes,” he did not provide any “documentation of these conditions.” Moreover, Sky provided no legal authority for the notion that the mere existence of COVID-19 alone — without regard to the steps DOC was taking to mitigate the risks and on a bare assertion that he was high-risk — required his release, particularly at the time of this litigation in 2022 and 2023 (two years after the start of the pandemic and after the introduction of the COVID-19 vaccine).

We wish to address one additional issue. In its order, the superior court noted that, in any event, it was unable to grant Sky's requested relief — unconditional release from confinement — because a writ of habeas corpus is available only if the detention lacks legal authorization.³¹ DOC made the same point in answer to Sky's complaint. Sky was convicted of numerous counts of sexual abuse of a minor, and he was clear in stating that he was not challenging these convictions as the legal basis for his detention in the habeas action.

We have substantial doubt that a habeas proceeding was the appropriate vehicle for Sky's claim under Alaska law. We note that some federal courts have held that the type of claim raised by Sky — that the government is incapable of providing constitutional confinement at any location in light of COVID-19 — is cognizable in federal habeas corpus.³² But existing federal habeas corpus statutes authorize review that is broader than the scope of the constitutionally based common law writ of habeas corpus.³³ And as we recognized in Flanigan v. State, the scope of the writ under Alaska law is coextensive with the original understanding of the common law writ, which operated solely to test the jurisdiction of the sentencing court.³⁴

*9 Indeed, AS 12.75.020 provides that “[a] person properly imprisoned or restrained by virtue of the legal judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution regularly and lawfully issued upon that judgment or decree shall not be allowed to prosecute the writ” of habeas corpus.³⁵ That is, the Alaska Legislature has never expanded the statutory scope of the writ of habeas corpus beyond its common law meaning. Instead, under Alaska law, collateral attacks on a defendant's conviction or sentence outside of the core of common law habeas are generally governed by post-conviction relief procedures under AS 12.72.³⁶

For its part, the State contends that this case could have been characterized as a civil action and proceeded through normal civil procedures.

We ultimately need not resolve this issue. Sky did not object to the characterization of his pleading as a petition for writ of habeas corpus.³⁷ And in any event, regardless of its proper characterization, Sky's conclusory claim that DOC was incapable of providing him constitutionally adequate confinement two to three years after the start of the COVID-19 pandemic did not entitle him to the relief he was seeking — unconditional release from his sentence.³⁸

Conclusion

The judgment of the superior court is AFFIRMED.

Footnotes

1

Sky v. State, 2005 WL 1278807 (Alaska App. June 1, 2005) (unpublished). Sky was also convicted of one count of third-degree misconduct involving weapons, for which he received a sentence of 2 years with 1 year suspended. Id. at *2.

2

Cynthia Sky jointly filed this application and remained part of the litigation at the time the court denied the habeas application. But because Cynthia subsequently withdrew from the litigation on appeal, we will refer solely to Dick Sky as the petitioner in this case.

3

In his pleading, Sky argued that the Governor and the Commissioner of the DOC had enacted a policy that gave the judiciary express power to order the release of “any prisoner whose life [was] known to be at high risk from COVID[-]19 as release from such unconstitutional confinement [was] unavailable from the State or DOC.” It is not clear what policy Sky was referencing.

On appeal, the State posits that the “public policy” that Sky was referencing is a press conference that was held on April 15, 2020 by Governor Dunleavy. See Governor's Press Briefing 4/15 (KTOO, Apr. 15, 2020), https://www.ktoo.org/2020/04/15/watchdunleavy-administration-to-discuss-covid-19-outbreak-in-jails-during-daily-update (last visited June 18, 2026). The purpose of the press conference was to update the public on COVID-19 and the public health measures being taken in response to the pandemic. During this press conference, DOC Commissioner Nancy Dahlstrom was asked whether DOC was considering a release plan for inmates “who [were at] higher risk for complications from COVID-19.” Commissioner Dahlstrom answered that “early release ... [was] not on the table”; she then detailed the conditions in the facilities and stated that “should the courts decide to make some decisions, I will honor that because that is my responsibility.”

To the extent this was the “policy” to which Sky was referring, we note that this press conference did not provide independent legal authority for courts to reduce sentences or release sentenced inmates early.

4

Cf. Roberts v. State, 445 P.2d 674, 676 (Alaska 1968) (“Habeas corpus is not available to review questions, no matter how important, which are not related to the cause of petitioner's detention.”); Flanigan v. State, 3 P.3d 372, 376 (Alaska App. 2000) (recognizing that the common law writ of habeas corpus was limited to testing the jurisdiction of the sentencing court); see also 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”).

5

AS 09.19.010(a) (providing, in relevant part, that “[a] prisoner may not commence litigation against the state unless the prisoner has paid full filing fees to the court ..., except that the court may exempt a prisoner from paying part of those fees if the court finds exceptional circumstances as described in this section”); AS 09.19.010(b) (setting out the documents a prisoner must submit to the court in order to apply for a filing fee exemption).

6

Alaska R. Civ. P. 86(c)(1).

7

Alaska R. Civ. P. 86(j).

8

While the superior court noted that there were some deficiencies in the financial documents submitted by Sky and Cynthia, the superior court concluded that, to avoid further delay, the submissions would be treated as sufficient to evaluate the fee exemption request.

9

In its response, DOC stated that the Skys were allowed to communicate by privileged legal mail and were allowed two weekly phone calls under the supervision of a probation officer.

10

In his amended complaint, Sky designated the superintendent as the respondent. In its answer, the Department of Law asserted that the superintendent had not been properly served and captioned its pleading with the “Department of Corrections” as the respondent.

11

See Kolody v. State, 172 P.3d 842, 843 (Alaska App. 2007) (“Alaska Civil Rule 86(n) codifies the rule that the writ of habeas corpus is an extraordinary remedy, and that litigants are not allowed to seek habeas corpus relief if they are entitled to seek relief using normal trial court or appellate procedures.”).

12

As we discuss in further detail below, it does not appear that Sky's original pleading was properly characterized as a habeas corpus petition under Alaska law, though he did not object to this characterization.

13

This subsection of the statute provides in full:

A prisoner may not commence litigation against the state unless the prisoner has paid full filing fees to the court or is a claimant under AS 23.20, except that the court may exempt a prisoner from paying part of those fees if the court finds exceptional circumstances as described in this section.

AS 09.19.010(a); see also Alaska R. Admin. P. 9(b)(1) (setting the amount of the filing fee for a civil case in the superior court).

14

AS 09.19.100(1)(B).

15

See AS 09.19.010(b).

16

See AS 09.19.010(c) (providing that “the court may grant an exemption from part of the applicable filing fees if the court finds that exceptional circumstances prevent the prisoner from paying full filing fees”).

17

AS 09.19.010(e) (providing that if timely payment of any reduced filing fee is not made, “the court may not accept any filing in the case”); Alaska R. Admin. P. 9(f)(4) (providing that, while “[a] civil action or proceeding may be accepted for filing at the time of or prior to payment of the filing fee[,] .... [t]he clerk may not issue a summons or otherwise proceed with the case until the filing fee is paid or the court grants a filing fee waiver”).

18

Sky argues that the initial decision by the superior court to accept his application as a habeas petition meant that the court had accepted the merits of his claim and implicitly waived the filing fee. But there is no indication that this initial decision was anything other than an administrative decision on the characterization of Sky's claim.

19

See, e.g., Barber v. State, Dep't of Corr., 314 P.3d 58, 66 (Alaska 2013) (holding that the application of AS 09.19.010 to the plaintiff violated his right to due process by requiring a filing fee in excess of his means).

20

We note that Sky did move for expedited consideration at the outset of his case, but the superior court denied his motion.

21

Cf. Levick v. Smedley, 553 P.2d 482, 484 (Alaska 1976) (holding that the questions of whether the habeas petitioner was lawfully arrested and then lawfully detained several days beyond the statutory commitment period were moot and did not entitle the petitioner to release on a writ of habeas corpus where a warrant authorized his continued detention); Olsen v. Todd, 9 Alaska 14, 17 (D. Alaska 1935) (“[A] [p]risoner will not be discharged in habeas corpus proceeding for defect in original arrest or commitment, where government shows sufficient ground for his detention.” (citing Wolck v. Weedin, 58 F.2d 928, 930 (9th Cir. 1932))).

22

See AS 22.20.020(a)(9) (providing that a judicial officer “may not act in a matter” if “the judicial officer feels that, for any reason, a fair and impartial decision cannot be given”).

23

Alaska R. Civ. P. 86(g)(1)(b).

24

Alaska Civil Rule 12(a) provides: “The state or an officer or agency thereof shall serve an answer to the complaint ... within 40 days after the service upon the attorney general of the pleading in which the claim is asserted.” Sky filed his amended complaint on March 1, 2023, and the court gave the State until May 19, 2023 to file its answer.

25

Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001).

26

See Clark v. State, Dep't of Corr., 156 P.3d 384, 387 (Alaska 2007) (“A claim is moot where a decision on the issue is no longer relevant to resolving the litigation, or where it has lost its character as a ‘present, live controversy,’ that is, where a party bringing the action would not be entitled to any relief even if he or she prevailed.” (quoting Municipality of Anchorage v. Baxley, 946 P.2d 894, 899 (Alaska App. 1997))).

27

Larson v. State, Dep't of Corr., 284 P.3d 1, 8 (Alaska 2012) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

28

Id. (emphasis omitted) (quoting Hertz v. Beach, 211 P.3d 668, 677-78 (Alaska 2009)).

29

Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).

30

Hertz, 211 P.3d at 678 (first citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); then quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)).

31

See Roberts v. State, 445 P.2d 674, 676 (Alaska 1968) (“Habeas corpus is not available to review questions, no matter how important, which are not related to the cause of petitioner's detention.”).

32

Diaz v. Kopp, 146 F.4th 301, 303, 307-08 (2d Cir. 2025) (recognizing that “[w]here a habeas petitioner alleges Eighth Amendment violations that can be remedied only by releasing the prisoner, that claim is appropriately raised in habeas” and holding that petitioner's claim calling into question the lawfulness of his continuing confinement in light of COVID-19 “lies at the core of habeas” and was cognizable under the federal habeas statute authorizing challenges by state prisoners to a state court judgment); Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (holding that claim that “there are no conditions of confinement sufficient to prevent irreparable constitutional injury” was properly brought under federal habeas statute governing challenges to execution of sentence). But see Pinson v. Carvajal, 69 F.4th 1059, 1071, 1075 (9th Cir. 2023) (recognizing that “claims that if successful would not necessarily lead to the invalidity of the custody” because the detention itself is not without legal authorization “are not at the core of habeas” and concluding that federal prisoners’ COVID-related claims fell outside the historic core of habeas corpus and thus were not cognizable under federal habeas statute authorizing challenges to execution of sentence); Rice v. Gonzalez, 985 F.3d 1069, 1070 (5th Cir. 2021) (recognizing that the fact that the appellant “might more likely be exposed to COVID-19 during confinement, and that he may have certain common underlying health conditions, taken together do not impugn the underlying legal basis for the fact or duration of his confinement” and thus declining to extend federal habeas corpus law to reach his case).

33

See Flanigan v. State, 3 P.3d 372, 379 (Alaska App. 2000) (Mannheimer, J., concurring, joined by Coats, C.J.).

34

Id. at 374-75 (main opinion); id. at 379 (Mannheimer, J., concurring, joined by Coats, C.J.); see also AS 12.75.010 (“A person imprisoned or otherwise restrained of liberty under any pretense whatsoever, except in the cases specified in AS 12.75.020, may prosecute a writ of habeas corpus to inquire into the cause of the imprisonment or restraint, and, if illegal, to be released from custody or to be granted another remedy as law and justice require.”); AS 12.75.020 (“A person properly imprisoned or restrained by virtue of the legal judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution regularly and lawfully issued upon that judgment or decree shall not be allowed to prosecute the writ [of habeas corpus].”).

35

See Roberts, 445 P.2d at 676 (“Habeas corpus is not available to review questions, no matter how important, which are not related to the cause of petitioner's detention.”).

36

See Alaska R. Crim. P. 35.1(a)(6) (providing, as a ground for post-conviction relief, “that the conviction or sentence is otherwise subject to collateral attack upon any ground or alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy”); see also Alaska R. Civ. P. 86(m) (providing that the civil rule governing habeas corpus “does not apply to any post-conviction proceeding that could be brought under Criminal Rule 35.1”); Alaska R. Crim. P. 35.1(b) (providing that Criminal Rule 35.1 “is intended to provide a standard procedure for accomplishing the objectives of all of the constitutional, statutory or common law writs”).

37

Sky's position may have been motivated, at least in part, by his mistaken belief that the early treatment of his case as a habeas petition reflected the court's endorsement of its merits.

38

See Diaz v. Kopp, 146 F.4th 301, 307-08 (2d Cir. 2025) (although petitioner's claim that no state facility was capable of offering him constitutional confinement in light of COVID-19 called into question the lawfulness of his confinement and thus fell within the “core of [federal] habeas” statute, petitioner's allegations were conclusory and insufficient to show that he was so severely at risk of death or disability from COVID-19 and that the prison system was incapable of protecting him such that “the State had created cruel and unusual conditions that could only be remedied by his immediate release from custody”).

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