Flanigan v. State

3 P.3d 372, 2000 Alas. App. LEXIS 77, 2000 WL 709510

• Court: Court of Appeals of Alaska
• Decided: June 2, 2000
• Docket: A-7116
• Status: Published

Opinions

0 P I N I 0 N

STEWART, Judge.

In 1982, James J. Flanigan was convicted of first-degree murder.¹ On direct appéal, this court affirmed Flanigan's conviction and his 60-year sentence.² More than 12 years later, on August 15, 1996, Flanigan filed an application for post-conviction relief. Flani-gan's application raised several claims including insufficiency of evidence to support the verdict, prosecutorial misconduct during trial, and ineffective assistance of counsel.

The State moved to dismiss Flanigan's application, claiming it was untimely. Flanigan opposed, arguing that the time-bar the State relied on was unconstitutional if applied to incarcerated applicants. - Flanigan - also claimed that his late filing was excused because the prison library, where he was confined, was not updated in a timely fashion. Superior Court Judge Charles R. Pengilly granted the State's motion to dismiss.

In this appeal, Flanigan claims that the dismissal of his petition violated the constitutional prohibitions on suspending the writ of habeas corpus. Flanigan also claims that even if there was no constitutional violation, the superior court erroncously rejected his excuse for filing late.

Discussion

Is Flaonigan's petition within the scope of Habeas Corpus?

Alaska Criminal Rule 35.1 governs post-conviction relief proceedings. As Criminal Rule 85.1(b) states: "(Criminal Rule 835.1] is intended to provide a standard procedure for accomplishing the objectives of all of the constitutional, statutory or common law writs." The rule provides that an application must be filed within the time Hmitations set out in AS 12.72.020³ In addition to the time limitations in AS 12.72, Ch. 79 § 40, SLA 1995 established a savings clause for defendants whose convictions were entered before July 1, 1994. The savings clause required those defendants to file a petition for post-conviction relief by July 1, 1996:

Notwithstanding any other provision of this Act, a person whose conviction was entered before July 1, 1994, has until July 1, 1996, to file a claim under AS 12.72⁴

Flanigan was convicted and sentenced in 1982. The savings clause of Ch. 79 § 40, SLA 1995 set July 1, 1996 as the deadline by which Flanigan could file a post-conviction relief application. But Flanigan did not file his application until August 15, 1996, approximately 45 days after the deadline.

Flanigan argues that the federal and the State constitutional provisions that prohibit the suspension of the writ of habeas corpus also prevent the application of a time limit to his pursuit of a petition for post-conviction relief under Criminal Rule 85.1. To answer Flanigan's claim, we must consider the reach of the suspension clauses and determine the scope of habeas corpus.

The second clause of Article I, Section 9 of our federal constitution, known as the Suspension Clause, provides as follows:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

A reading of this clause in isolation may suggest an inherent authority to issue a writ of habeas corpus in the absence of a valid suspension, at least to the extent that the writ was available at common law when the Constitution was drafted.⁵ More fundamental to Flanigan's case, though, is the reach of the Suspension Clause. The Suspension Clause limits the power of the federal government to suspend the writ of habeas corpus.⁶ By design, the Suspension Clause is not a limitation on state regulation of habeas corpus,⁷ and Flanigan has cited no authority that it is.

Even though the federal Suspension Clause provides no relief for Flanigan, a review of federal authority provides insight into the scope of habeas corpus at common law. In cases where an incarcerated criminal defendant pursued a writ of habeas corpus, the Supreme Court originally viewed the scope of the common law writ to be limited to testing the jurisdiction of the sentencing court that issued the judgment restraining the petitioner.⁸ But that understanding of the scope of common law habeas corpus did not always prevail. In Fay v. Noig,⁹ a case decided after the Alaska Constitutional Convention, the Supreme Court reviewed the history of the writ and decided that "[alt the time the privilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any restraint contrary to fundamental law[.]"¹⁰ That view of the scope of the writ expands a reviewing court's authority beyond the limited question of the sentencing court's jurisdiction. However, in a concurring opinion in Schneckloth v. Bustamonte,¹¹ Justice Powell criticized that expansive view of the scope of the common law writ. Justice Powell opined that the seope of the common law writ perceived by the majority in Fay v. Noig depended on "a revisionist view of the historic function the writ was meant to perform.¹² Justice Powell noted that the scope of the common law writ was limited to an inquiry into the formal jurisdiction of the sentencing court. He found support for that view in Chief Justice Marshall's opinion in Ex parte Watkins :

This writ is, as bas been said, in the nature of a writ of error which hrings up the body of the prisoner with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause? ¹³

Chief Justice Marshall's answer to his own rhetorical question was yes.¹⁴

In Felker v. Turpin, Chief Justice Rehnquist, writing for a unanimous court, revisited the scope of the common law writ of habeas corpus for an incarcerated criminal defendant.¹⁵ Chief Justice Rehnquist also relied on Ex parte Watkins for guidance on the seope of the common law writ when the constitution was adopted: for an incarcerated defendant, the common law writ was limited to testing the jurisdiction of the sentencing court.¹⁶

Article I, Section 18 of the Alaska Constitution is similar to the suspension clause in several state constitutions and similar to the federal Suspension Clause:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or actual or imminent invasion, the public safety requires it.

Part of the materials provided to the delegates at our Constitutional Convention was a review of the suspension clauses contained in the federal and in state constitutions. The material specifically quoted only the Louisiana and Oklahoma constitutions.¹⁷ That review highlighted the major distinguishing factor in the various suspension clauses: some state constitutions, like Oklahoma, barred any suspension of the writ;¹⁸ the federal constitution and other states, like Louisiana, permitted suspension of the writ in times of rebellion or invasion.¹⁹

The discussion of the proposed Alaska suspension clause during the Constitutional Convention centered on a concern for the realities of existing warfare and Alaska's proximity to the former Soviet Union.²⁰ An absolute suspension clause, like Oklahoma's, was criticized because of the view that Alaska was more likely to be attacked than a state positioned in the middle of the country like Oklahoma.²¹ In response to the delegates' concern about attack and invasion, the proposed Alaska suspension clause was modified to read "actual or imminent invasion" so that a potential invasion was a circumstance that could justify suspension of the writ. However, nothing in the delegates' discussion of a suspension clause reflected any understanding that the delegates considered that the writ of habeas corpus protected by the suspension clause under consideration had any different seope than existed at common law.

Decisions that examined the common law scope of habeas corpus prior to the Alaska Constitutional Convention, both from Alaska ²² and other states,²³ agreed with the original view of the Supreme Court discussed above: the common law writ of habeas corpus permits an incarcerated criminal defendant to test the jurisdiction of the sentencing court. In Hoffman v. State,²⁴ our supreme court appeared to depart from that limited view of the seope of common law habeas corpus to follow the broader view expressed by the Fay Court. Hoffman sought relief in habeas corpus when the superior court incarcerated him after revoking his probation. Hoffman was indigent and was not provided the assistance of counsel in the superior court. The Hoffman court concluded that Hoffman had a right to counsel.²⁵

Compliance with the right to counsel is such a fundamental requirement of due process that it is an essential prerequisite to jurisdiction.²⁶ Thus, the adoption of a broader view of habeas corpus was not essential to the resolution of Hoffman's case because deprivation of counsel deprives a court of jurisdiction. The Fay Court's broad view of the scope of common law habeas corpus is now disfavored in the U.S. Supreme Court and there is no reason to conclude that our supreme court would now find that the seope of the writ protected by the suspension clause adopted at the Alaska Constitutional Convention was broader than the then-prevailing view of the common law writ's scope.

Although Flanigan made a number of claims in his petition for post-conviction relief, he has not argued that his petition included a claim that the superior court lacked personal or subject matter jurisdiction in his criminal case. We find no such claim in our independent review of the petition for post-conviction relief that Flanigan filed in the superior court.

Because Flanigan's petition for post-conviction relief did not include a claim that was within the seope of the common law writ of habeas corpus, Flanigan's argument that the time bar in Ch. 79 § 40, SLA 1995 violates the suspension clause of the Alaska constitution is immaterial, because Flanigan's petition did not plead a claim within the seope of the common law writ of habeas corpus. Although Article I, Section 18 may preclude a state limitation on an applicant's quest for relief that would have been available in a common law writ of habeas corpus, nothing in Flanigan's petition for post-conviction relief was within the seope of that writ. Therefore, Judge Pengilly's reliance on the July 1996 time limit to dismiss Flanigan's petition did not violate the prohibition on suspending the writ of habeas corpus.

Did the superior court erroneously reject Flanigan's excuse for his delay in filing his petition?

Next, Flanigan argues that even if the time limits on petitions for post-conviction relief are constitutional, his petition should have been accepted under AS 12.72.020(b)(1)(B) because agents of the State prevented him from filing a timely petition.²⁷ While Flanigan was working on his petition for post-conviction relief, he was incarcerated in a Florida prison. In the superior court, Flanigan submitted his own affidavit and affidavits from prison officials attesting that the prison's copy of the 1995 Alaska Statutes was misplaced and unavailable for several months. Flanigan claimed that, hecause of this administrative error, he remained unaware that the Alaska Legislature had enacted a filing deadline for post-conviction relief petitions, and thus he missed the deadline.

Flanigan's allegations, even if true, do not appear to qualify him for relief under AS 12.72.020(b)(1)(B). - The statute requires proof that agents of the State "physically prevented" a defendant from filing a timely petition. Flanigan claims that he lacked access to a current copy of the Alaska statutes, but he does not claim that anyone physically prevented him from filing his petition. Moreover, Flanigan does not claim that government agents intentionally withheld the Alaska statutes or intentionally made them difficult to find. In his own affidavit, Flani-gan declared that he "point[ed} fingers at no one". Flanigan stated "that the 1995 Alaska Statutes were actually misplaced and [not] discovered [again until] in late November [1996] ... due to the [prison] uprising [which occurred in} October 1995. It took the better part of a year for the library at ... Talladega [Prison] to become fully functional again."

Finally, we note that Flanigan's claim really amounts to an "ignorance of the law" argument. Flanigan does not assert that the legislature enacted a new ground for seeking post-conviction relief in 1995 and that he remained ignorant of this new ground until the missing 1995 statute books were recovered. The grounds for seeking post-convietion relief remained the same; what changed in 1995 was the enactment of a time limit for filing a post-conviction relief action. Flani-gan may have remained ignorant of this time limit, but Flanigan's lack of access to the 1995 statutes did not prevent him from researching and filing his claim.

Conclusion

The judgment of the supemor court is AFFIRMED.

1 . AS 11.41.100(a)(1)(A).

2 . See Flanigan v. State, Memorandum Opinion and Judgment No. 583 (Alaska App., May 30, 1984).

3 . See Alaska Criminal Rule 35.1(c).

4 . Ch. 79, § 40, SLA 1995.

5 . See Swain v. Pressley, 430 U.S. 372, 384-85, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977) (Burger, C.J., concurring).

6 . See Morgan's Louisiana & TR. & S.S. Co. v. Board of Health, 118 U.S. 445, 467, 6 S.Ct. 1114, 30 L.Ed. 237 (1886).

7 . See Gasquet v. Lapeyre, 242 U.S. 367, 369, 37 S.Ct. 165, 61 L.Ed. 367 (1917).

8 . See Ex parte Watkins, 28 U.S.(3 Pet.) 193, 201-02, 7 L.Ed. 650 (1830); Wood v. Brush, 140 U.S. 278, 280, 11 S.Ct 738, 35 L.Ed. 505 (1891).

9 . 372 U.S. 391, 83 S.Ct. 822, 9 LEd.2d 837 (1963) (overruled in part by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct 2497, 53 LEd.2d 594 (1977)).

10 . Id. at 426, 83 S.Ct. 822.

11 . 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

12 . Id. at 252, 93 S.Ct. 2041 (Powell, J., concurring).

13 . Id. at 253, 93 S.Ct. 2041 (quoting Ex parte Watkins, 28 U.S. at 201-02).

14 . Id.

15 . 518 U.S. 651, 663, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

¹⁶

17 . See Public Administration Service, 1 Constitutional Studies: Civil Rights and Liberties (November 8, 1955).

18 . See, eg., Oklahoma Constitution, Article II, Section 10: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state."

19 . See, eg., Louisiana Constitution, Article I, Section 13: "The privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion, or invasion, the public safety may require it."

20 . Proceedings of the Alaska Constitutional Convention, Part 2, Pgs. 1358-65; 1450-54.

²¹

22 . See Mabry v. Beaumont, 6 Alaska 512, 515 (D.Alaska. Terr.1922); Roberts v. State, 445 P.2d 674, 676 (Alaska 1968).

23 . See Grieve v. Webb, 22 Wash.2d 902, 158 P.2d 73, 74 (1945); In re Forest, 45 N.M. 204, 113 P.2d 582, 584 (1941).

24 . 404 P.2d 644, 647 & n. 11 (Alaska 1965).

²⁵

26 . See Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

27 . This statute reads: "[A] court may hear a claim [for post-conviction relief] if the applicant establishes due diligence in presenting the claim and sets out facts supported by admissible evidence establishing that the applicant was physically prevented by an agent of the state from filing a timely claim."