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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SCOTT A. HIGGINS, )
) Court of Appeals No. A-4732
Appellant, ) Trial Court No. 3AN-92-5756 Civ
)
v. ) O P I N I O N
)
PHILLIP BRIGGS, )
Superintendent, )
Cook Inlet Pre-Trial Facility, )
Alaska Dept. of Corrections, )
) [No. 1354 - June 24, 1994]
Appellee. )
__________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: Scott A. Higgins, pro se,
Seward, for Appellant. John K. Bodick,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Coats and Mannheimer, Judges,
and Wolverton, District Court Judge.*
[Bryner, Chief Judge, not participating.]
MANNHEIMER, Judge.
Scott A. Higgins appeals the superior court's denial of
his petition for writ of habeas corpus. For several years,
Higgins had been a prisoner in the custody of the Alaska
Department of Corrections. As punishment for Higgins's various
violations of prison rules, the Department of Corrections had, at
different times over the last five years, taken away portions of
the good time credit Higgins accrued under AS 33.20. Higgins
filed a petition for writ of habeas corpus in the superior court,
claiming that the Department of Corrections had imposed excessive
penalties for his violations of prison rules - that his
violations of the rules were too minor to merit such an extensive
loss of good time credit. Higgins further argued that, if his
good time credit was restored, he would be entitled to immediate
parole release under AS 33.20.040(a).
Higgins's petition followed a tortuous path through the
superior court. The State asserted that the court should treat
Higgins's petition as an application for post-conviction relief
under Alaska Criminal Rule 35.1. The court initially agreed with
the State and, under Donnelly v. State, 516 P.2d 396, 399 (Alaska
1973), the court appointed the Public Defender Agency to
represent Higgins. However, the Public Defender Agency almost
immediately asked the court to vacate their appointment. The
Agency argued that, under Department of Corrections v. Kraus, 759
P.2d 539, 540 (Alaska 1988), Higgins could pursue neither a
petition for writ of habeas corpus nor a petition for post-
conviction relief. Instead, the Agency argued, Higgins's sole
remedy was an administrative appeal, and the Agency did not have
the statutory authority to represent Higgins in an administrative
appeal. See AS 18.85.100.
Superior Court Judge Karen L. Hunt ultimately accepted
the Public Defender Agency's characterization of the litigation.
Relying on the Alaska Supreme Court's decision in Kraus, Judge
Hunt ruled that Higgins's only avenue of relief was through an
administrative appeal. Moreover, relying on Kraus and on
McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975), Judge Hunt
ruled that, in an administrative appeal, Higgins could litigate
only allegations of constitutional error (generally, failure of
the Department to afford him due process in the disciplinary
proceedings). Because Higgins did not argue that he had been
denied due process, but rather argued that the Department had
imposed disproportionate penalties for his various infractions of
prison rules, Judge Hunt concluded that Higgins's petition did
not raise constitutional issues. Instead, Judge Hunt concluded
that Higgins's petition was in the nature of a consolidated
sentence appeal from a series of Department of Corrections
disciplinary decisions. Judge Hunt therefore dismissed Higgins's
lawsuit.
Higgins appeals this dismissal. He contends that the
superior court should have allowed him to litigate his claims
either as a petition for writ of habeas corpus under Alaska Civil
Rule 86 or as a petition for post-conviction relief under Alaska
Criminal Rule 35.1. To answer Higgins's contention, we must
examine not only the propriety of the superior court's ruling but
also the limits of this court's jurisdiction.
Unlike the supreme court, this court is a creature of
statute. Our jurisdiction is defined by the legislature in
AS 22.07.020. Under the pertinent portions of AS 22.07.020(a),
we have appellate jurisdiction in all superior court actions
involving "(1) criminal prosecution; (2) post-conviction relief;
... (5) habeas corpus; [and] (6) probation and parole". If
Higgins is correct that he should have been allowed to pursue a
petition for writ of habeas corpus or a petition for post-
conviction relief, then AS 22.07.020(a)(2) and (a)(5) give us the
authority to review the superior court's decision denying Higgins
the requested relief. On the other hand, if this is an
administrative appeal, then this court does not have jurisdiction
to review the superior court's decision.
Under AS 22.05.010(a), "a party has only one appeal as
a matter of right from an action or proceeding commenced in
either the district court or the superior court." And AS
22.05.010(c) declares that "decision[s] of the superior court on
an appeal from an administrative agency may be appealed to the
supreme court as a matter of right." From these two statutory
provisions, it follows that if a party wishes to exercise the
right of appeal from the superior court's decision of an
administrative appeal, the party must take that appeal to the
supreme court, not to this court. This is, in fact, where such
appeals have gone since this court was established in 1980. See
Kraus, 759 P.2d 539, as well as Hertz v. Carothers, 784 P.2d 659
(Alaska 1990), and Owen v. Matsumoto, 859 P.2d 1308 (Alaska
1993).
This court has the authority - indeed, the obligation -
to determine whether Higgins's litigation falls within our
subject-matter jurisdiction. See O'Link v. O'Link, 632 P.2d 225,
226 n.2 (Alaska 1981). To decide this jurisdictional question,
we must necessarily decide whether the superior court correctly
characterized Higgins's claim as an administrative appeal. If we
agree with the superior court that Higgins's litigation is an
administrative appeal, we would necessarily also conclude that we
have no appellate jurisdiction to rule on the merits of the
superior court's order dismissing that appeal.
We now turn to the superior court's ruling that an
administrative appeal is Higgins's sole method for challenging
the Department of Corrections' revocations of his good time cred
it. Review of the superior court's decision presents two issues.
First, is Higgins entitled to any type of judicial review of the
Department of Corrections' decisions to take away his good time
credit? Second, if Higgins does have a right to judicial review,
what procedural mechanism(s) must he follow to obtain that
review? Both of these issues are purely legal questions. We
therefore decide them without deference to the superior court's
ruling. Conner v. State, 696 P.2d 680, 682 (Alaska App. 1985).
In McGinnis v. Stevens, the Alaska Supreme Court estab
lished due process standards for prison disciplinary proceedings.
The court held that prisoners have only a limited right to
judicial review of prison disciplinary proceedings:
Since Wolff [v. McDonnell, 418 U.S. 539, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974)]
acknowledges that a prison disciplinary
proceeding is not a criminal prosecution, ...
a [right of] appeal to the superior court is
not required by the federal constitution.
Nor is a right to an automatic appeal, as a
matter of due process, required by Alaska's
constitution. ... In our view, the primary
law source for resolution of disciplinary
proceeding issues is the Division of
Corrections' regulations. Interpretation and
application of these regulations should be,
and is, committed in the first instance to
employees of the Division of Corrections[.]
McGinnis, 543 P.2d at 1235-36. However, in a footnote to the
above-quoted text, the supreme court added:
If fundamental constitutional rights are
alleged to [have been] abridged in
disciplinary proceedings, it would be the
duty of the court to inquire into the
allegations.
McGinnis, 543 P.2d at 1236 n.45.
In Kraus, the supreme court was asked to clarify the
scope of judicial review granted by McGinnis. Kraus involved two
prisoners, Kraus and Winter, who had lost good time credit as a
result of their violation of prison rules. Seeking reinstatement
of their good time credit, the prisoners filed administrative
appeals to the superior court under Alaska Appellate Rule 602.
The State asked the superior court to dismiss both appeals for
lack of jurisdiction; when the superior court refused to dismiss
the appeals, the State brought a petition for review to the
supreme court. Kraus, 759 P.2d at 539-540.
The supreme court reaffirmed that, under McGinnis,
"prisoners have a right to judicial review of major disciplinary
proceedings [when] issues of constitutional magnitude are
raised". Kraus, 759 P.2d at 540. The court also held that,
because the prisoners had suffered loss of good time credit, the
disciplinary proceedings against them had been "major" for
purposes of applying McGinnis. Kraus, 759 P.2d at 540 n.3. The
court next rejected the State's contention that prisoners should
invoke their right of judicial review by filing a petition for
writ of habeas corpus or a petition for post-conviction relief.
We reject the state's argument for
several reasons. ... [I]n McGinnis we
referred to the judicial review of major
disciplinary proceedings as an appeal. ...
[W]e agreed ... that [this] review would be
based on the tape recording of the
disciplinary proceedings. A review on the
record, as distinct from de novo reception of
evidence, is a characteristic of appeals. ...
[Moreover], this court has con-sistently
shown a preference for reviewing adjudicative
decisions of an administrative agency by
means of an appeal. ... The essential
question is a functional one: does the claim
before the superior court challenge a prior
administrative decision? If the answer is
affirmative, Appellate Rule [602] applies.
Kraus, 759 P.2d at 540 (citations omitted). See also Hertz v.
Carothers, 784 P.2d 659, 660 (Alaska 1990) (per curiam), where
the court summarized this aspect of Kraus: "In Department of
Corrections v. Kraus ... [we] determined that the judicial review
of inmate disciplinary proceedings, when constitutionally re
quired, must be conducted in an appeal rather than any other type
of proceeding."
On appeal, Higgins contends that McGinnis and Kraus do
not necessarily mean that an administrative appeal is the sole
method for challenging Department of Corrections disciplinary
decisions. Higgins argues that habeas corpus and post-conviction
relief petitions present alternative procedural avenues for
pursuing his claims. Higgins admits that Kraus appears to
foreclose his argument, since the supreme court in Kraus
expressly rejected the State's contention that prisoner lawsuits
should be prosecuted as petitions for writ of habeas corpus or as
petitions for post-conviction relief. Nevertheless, Higgins
asserts that his lawsuit is distinguishable from Kraus because
his case involves, not just the loss of good time credit, but the
loss of so much good time credit that restoration of this credit
would result in his immediate release from prison (on mandatory
parole). We reject Higgins's argument for two reasons.
First, the Alaska Supreme Court has consistently
interpreted McGinnis and Kraus to mean that an administrative
appeal is the sole method for seeking judicial review of prison
disciplinary decisions. See Hertz, 784 P.2d at 660. Compare
Owen v. Matsumoto, 859 P.2d 1308 (Alaska 1993), in which the
court ruled that a prisoner challenging the Department's
calculation of his underlying sentence should not seek judicial
review through the appellate process. Applying the "functional"
test it had used in Kraus, the court declared that appellate
review was inappropriate because the Department's calculation of
a sentence does not arise from a trial-like event. That is, when
calculating a prisoner's sentence, the Department does not engage
in fact-finding or in an exercise of discretion that would
produce "records reviewable on an administrative appeal". Owen,
859 P.2d at 1310.1
Higgins, like the prisoners in Kraus, was clearly
seeking judicial review of a trial-like event - or, rather,
review of a series of trial-like events: the Department of
Corrections' various "sentencing" decisions over a five-year span
(their decisions regarding how much good time credit to revoke
for Higgins's various violations of prison rules). The primary
adjudicative events had already occurred; Higgins was asking the
superior court to review the Department's adjudications for abuse
of discretion. The supreme court has declared that the essential
question is one of function: what role did Higgins ask the
superior court to play? The answer here, as it was in Kraus, is
that Higgins was asking the superior court to engage in the
equivalent of appellate review. Thus, Higgins's lawsuit must be
categorized as an administrative appeal.2
Higgins asserts that his case is different because, if
the Department's sanctions are found to be excessive and
reversed, he will be entitled to parole release. But whether or
not Higgins would be entitled to parole release, the anticipated
judicial function of the superior court would not change. In
Kraus, the supreme court ruled that the sole way in which the
superior court may exercise this appellate function is through an
administrative appeal.
A second reason for rejecting Higgins's argument is
that it would reward delay and lack of diligence. During the
five-year period that Higgins complains of, each time the
Department of Corrections took away a portion of Higgins's good
time credit, Higgins was entitled to appeal the Department's
decision (if he had a colorable claim that the Department had
violated his constitutional rights). For five years, Higgins
never appealed. Now he asserts that he is entitled to additional
procedural rights (the right to pursue either a petition for writ
of habeas corpus or a petition for post-conviction relief)
because, over this five-year period, the accumulated loss of good
time credit has come to equal the number of days remaining in his
sentence.
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 "writ of habeas corpus is an
extraordinary remedy and will not ordinarily be granted when
there is another adequate remedy." Taggard v. State, 500 P.2d
238, 241 n.7 (Alaska 1972). And Criminal Rule 35.1(b) declares
that a petition for post-conviction relief "is not a substitute
for[,] nor does it affect[,] any remedy incident to the
proceedings in the trial court", nor is it a substitute for
"direct review of the sentence or conviction".
Moreover, a prisoner who inexcusably fails to appeal
can not thereafter take advantage of his own neglect to justify a
collateral attack on his conviction or sentence (by arguing that
the requested collateral attack must be allowed since the right
to appeal has expired). See Stone v. Powell, 428 U.S. 465, 478
n.10; 96 S.Ct. 3037, 3044 n.10; 49 L.Ed.2d 1067 (1976) ("[N]oncon-
stitutional claims that could have been raised on appeal, but
were not, may not be asserted in collateral proceedings."); Sunal
v. Large, 332 U.S. 174, 182; 67 S.Ct. 1588, 1593 (1947) (absent
extraordinary circumstances, the remedy of habeas corpus is not
available to defendants "who accept the judgment of [the trial
court] and do not appeal"); Billings v. Maass, 738 P.2d 222, 223
(Or. App. 1987) ("The remedy of habeas corpus is not available to
parties who neglect to seek appellate review of the challenged
decision.").3 We therefore reject Higgins's argument that,
because he waited so long to appeal the Department of
Corrections' various disciplinary decisions, he now should stand
in a better legal position than a prisoner who followed the
proper procedures and pursued timely appeals.
For these reasons, we agree with the superior court
that Higgins's sole procedural mechanism for challenging the
Department of Corrections disciplinary decisions was an
administrative appeal under McGinnis and Kraus. Under the facts
of this case, Higgins was not entitled to pursue either a
petition for writ of habeas corpus or a petition for post-
conviction relief.
Because we conclude that Higgins's lawsuit was properly
characterized as an administrative appeal, we have no
jurisdiction to decide the merits of the superior court's
decision dismissing that appeal for failure to state a
constitutional claim. We therefore do not address Higgins's
assertions (1) that he in fact had constitutional claims to
raise, (2) that the superior court should have ordered disclosure
of all of the Department's records, and (3) that the superior
court should have ordered the Public Defender Agency to represent
Higgins at public expense. For the same reason, we do not
address Higgins's claim that Department of Corrections officials
violated the rules governing prisoner discipline established in
the class-action lawsuit Cleary v. Smith, No. 3AN-81-5274 Civ.
Regarding the classification of Higgins's lawsuit as an
administrative appeal, the judgement of the superior court is
AFFIRMED. In all other respects, this appeal is DISMISSED for
want of jurisdiction.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 Several times in the past, this court has entertained
appellate litigation involving the calculation of prisoners' good
time credit. See Briggs v. Donnelly, 828 P.2d 1207 (Alaska App.
1992); Souza v. State, 792 P.2d 289 (Alaska App. 1990); and
Helton v. State, 778 P.2d 1156 (Alaska App. 1989). See also
Bishop v. Anchorage, 685 P.2d 103, 106 (Alaska App. 1984) (issue
moot because the district court lacked subject-matter
jurisdiction).
Donnelly and Souza came to us on appeal from habeas
corpus litigation; Helton came to us on appeal from a denial of
post-conviction relief. However, in none of these appeals were
we asked to determine whether a habeas corpus petition or a
petition for post-conviction relief was the proper vehicle for
litigating the prisoners' claims in the superior court.
Moreover, in all these cases, the issue litigated in the trial
court was purely one of constitutional or statutory construction:
how was a prisoner's good time credit to be calculated under the
pertinent sections of AS 33.20 and the regulations of the
Department of Corrections? It therefore appears that, under the
test laid down in Owen v. Matsumoto, none of these cases would
have been an "administrative appeal".
2 See also Haynes v. State Commercial Fisheries Entry
Comm'n, 746 P.2d 892, 893 (Alaska 1987), in which the supreme
court held that a claim for injunctive relief had to be character
ized as an administrative appeal because the superior court could
grant the requested injunctive relief only if it determined that
the Fisheries Entry Commission's administrative decision was
erroneous. And see Ballard v. Stich, 628 P.2d 918, 920 (Alaska
1981), and Owsichek v. State, 627 P.2d 616, 620 (Alaska 1981), in
which the supreme court held that, when an action for injunctive
relief seeks the same type of administrative review from the
superior court as could be had through a normal appeal from an
administrative order, the action for injunctive relief must be
treated as an appeal.
3 The Alaska Supreme Court has ruled that post-conviction
relief should be granted to a prisoner who wished to appeal but
whose attorney inexcusably failed to file the appeal. McCracken
v. State, 482 P.2d 269, 272-73 (Alaska 1971). Compare Pore v.
State, 452 P.2d 433 (Alaska 1969). But Higgins offers no reason
for his failure to appeal the various Department of Corrections
disciplinary sanctions during the past five years. Moreover, the
relief granted in such cases is the right to pursue an appeal,
not the right to a new trial or a new sentencing.
