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Mullin v. State (2/18/00) ap-1663
Mullin v. State (2/18/00) ap-1663
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS G. MULLIN, )
) Court of Appeals No. A-7053
Appellant, ) Trial Court No. 1JU-96-1582 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1663 February 18, 2000]
)
Appeal from the Superior Court, First Judicial
District, Juneau, Thomas M. Jahnke, Judge.
Appearances: Margaret R. Simonian and Leslie
A. Hiebert, Assistant Public Advocates, and Brant G. McGee, Public
Advocate, Anchorage, for Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Alaska has enacted a statute of limitations governing
petitions for post-conviction relief. [Fn. 1] For Thomas G. Mullin
(a prisoner serving a 40-year sentence for sexual abuse of minors),
the filing deadline was July 1, 1996.
Mullin filed his petition for post-conviction relief on
June 28, 1996 three days before the deadline but the superior
court clerk's office refused to accept the petition because Mullin
failed to submit either the $100 filing fee or an application for
exemption from the fee. The clerk's office notified Mullin of the
problem, and they sent him the application form for seeking
exemption from the filing fee. Mullin filled out this form and
returned it to the clerk's office on July 24th. The clerk's office
then accepted Mullin's petition for filing.
Several months later, the superior court dismissed
Mullin's petition for failure to meet the July 1st filing deadline
set by the statute of limitations. Even though Mullin submitted his
initial paperwork on June 28th, the court concluded that this
initial paperwork did not satisfy the statute of limitations because
it was incomplete: Mullin did not tender the $100 filing fee, nor
did he submit an application for exemption from that fee. The court
recognized that Mullin cured the deficiency on July 24th when
he submitted his application for exemption from the filing fee, but
the court ruled that Mullin's curative action came too late because
the July 1st deadline had expired.
Mullin now appeals the superior court's dismissal of his
petition for post-conviction relief. We conclude that Mullin's
initial filing, albeit technically deficient, was sufficient to
satisfy the statute of limitations. We therefore reverse the
superior court and order reinstatement of Mullin's petition.
To resolve Mullin's case, we must answer this question:
When a prisoner delivers a technically deficient petition for post-
conviction relief to the clerk's office, does this delivery satisfy
the statute of limitations, or does the statute remain unsatisfied
until the prisoner cures the defects in the petition? The State
argues that two provisions of Alaska law Criminal Rule 35.1 and
AS 9.19.010 show that the statute of limitations remains
unsatisfied until all defects are cured.
Criminal Rule 35.1(c) declares that a petition for post-
conviction relief "is commenced by filing an application with the
clerk", and AS 9.19.010(a) declares that a prisoner such as Mullin
"may not commence litigation against the state" unless the prisoner
has paid the applicable filing fees or has applied for a partial
exemption from fees under AS 9.19.010(b). [Fn. 2] From these
provisions of law, the State concludes that a petition for post-
conviction relief can not be deemed "filed" until the petitioner pays
the filing fee or applies for partial exemption from the fee.
Because Mullin took neither of these steps until late July, the
State contends that Mullin failed to satisfy the July 1st statute
of limitations deadline.
Actually, AS 9.19.010 appears to be stricter than the
State construes it to be. Subsection (e) of this statute declares
that, even when a court grants a prisoner's request for a partial
exemption from the normal filing fee, the prisoner's case "[shall]
not be accepted for filing" unless the prisoner pays the reduced fee
within 30 days (or any longer period allowed by the court). If this
provision were construed in line with the State's argument, a
prisoner's petition for post-conviction relief would not be
considered "filed" until (a) a judge rules on the prisoner's request
for partial exemption from fees and (b) the prisoner pays the
reduced fee.
The State's suggested interpretation of Criminal Rule 35.1
and AS 9.19.010 is at odds with the long-standing rule that a
pleading may satisfy a filing deadline even though the pleading is
technically deficient. For example, ninety years ago (when Alaska
was a United States territory governed by federal law), the Ninth
Circuit declared that appellate pleadings filed within the relevant
time limit would be considered timely despite a technical defect or
omission in the pleadings. In Corcoran v. Kostrometinoff [Fn. 3],
the court ruled that a notice of appeal would be deemed timely
despite the fact that the appellant failed to file the required cost
bond until after the deadline for filing the appeal had passed.
More importantly, the State's interpretation of the law
could easily lead to unfairness and unreasonable discrimination
among petitioners. If we construed AS 9.19.010(e) to mean that the
statute of limitations remains unsatisfied until the court system
rules on a prisoner's request for partial exemption from the filing
fee and sets the amount of the reduced fee, then the timeliness of
the prisoner's petition would hinge on factors completely beyond the
prisoner's control.
The court system might easily take two or three weeks to
process a prisoner's request for partial exemption from the filing
fee. [Fn. 4] Moreover, the statute then allows the prisoner 30 days
(or longer, at the judge's discretion) to pay the reduced fee. If
we were to read AS 9.19.010(e) in the manner the State suggests,
then even when a prisoner submitted a request for partial fee-
exemption at the same time as they submitted their underlying
petition for post-conviction relief, the prisoner's case would not
be "filed" for another six to eight weeks perhaps longer. Thus,
prisoners who submitted their petitions 30, 40, or even 50 days in
advance of the statute of limitations deadline would still find
themselves thrown out of court because of this built-in judicial
delay in "filing" their petitions.
It would be unconscionable to deny prisoners the
opportunity to litigate their claims because of systemic delays.
It would also be unconscionable if, between two prisoners who file
their petitions weeks in advance of the statute of limitations
deadline, one prisoner were allowed to litigate and the other barred
from litigating simply because the first prisoner's request for
filing-fee exemption was routed to a judge who decided the request
the next day, while the other prisoner's request was routed to a
judge who was on vacation, so that the request sat unread on the
judge's desk for two or three weeks.
These considerations are strong arguments against the
State's suggested interpretation of AS 9.19.010. But how else are
we to interpret the legislature's statement that a prisoner's case
is not to be "accepted for filing" until the court makes its filing
fee determination and the prisoner pays the reduced fee? Two
federal cases decided last year Nichols v. Bowersox [Fn.
5] and Jones v. Bertrand [Fn. 6] provide the proper answer to this
question.
Nichols and Jones involved prisoners who filed petitions
for habeas corpus. In both cases, the petitions were dismissed as
time-barred. Even though the petitions themselves were filed within
the time allowed by the relevant statute of limitations, the
petitions were not accompanied by either the filing fee or an order
allowing the prisoner to proceed in forma pauperis. [Fn. 7] The
federal district courts ultimately granted both prisoners the right
to proceed in forma pauperis, but by then the statute of limitations
had expired.
Rule 3(b) of the Federal Rules Governing Section 2254
Cases (i.e., habeas corpus litigation brought by federal prisoners)
is quite similar to AS 9.19.010(b) and (e). Rule 3(b) declares that
the federal district court "shall file the petition" and enter it
into the court docket only "[u]pon receipt of the petition and the
filing fee, or an order granting leave to the petitioner to proceed
in forma pauperis". Based on this provision of Rule 3(b), the
district courts in both Nichols and Jones ruled that the prisoners'
petitions were not "filed" until after the statute of limitations
expired.
But on appeal, both the Seventh Circuit and the Eighth
Circuit rejected this interpretation of Rule 3(b). As the Eighth
Circuit stated in Nichols, the rule "tell[s] the clerk's office how
to process the petition once [it is] received", but the rule "do[es]
not ... address the question [of] whether, for purposes of applying
the one-year period of limitation ... , the moment of filing occurs
when the petition is [initially] delivered ... or upon some later
event." [Fn. 8] As the Seventh Circuit held in Jones, the rule
merely governs "the filing requirements for procedural purposes";
it does not address "statute of limitations concerns." [Fn. 9]
We agree with the reasoning of these two federal cases
(and the cases that they cite). We therefore interpret AS 9.19.010
as these two federal circuits interpreted their Rule 3.
AS 9.19.010 establishes the procedural requirements that
prisoners must meet before a court will allow their petitions for
post-conviction relief to go forward requirements that must be
satisfied before the court will require the State to file an answer
and before the court will allow the litigation to proceed to
discovery and trial. One of these procedural requirements is the
payment of a filing fee either the full fee set by law or a
reduced fee set by the court when the prisoner applies for a partial
exemption under AS 9.19.010(b). But, for purposes of deciding
whether a petition is filed within the time limits established in
AS 12.72.020(a)(3) (4), the relevant event is the filing of the
petition itself even if the prisoner fails to accompany the
petition with either a filing fee or an application for reduced fee.
The State argues that if we interpret the statute this
way, we defeat the legislative purposes that underlie the statute
specifically, the legislature's desire to deter frivolous and
stale claims. We do not agree. Under our interpretation of the
statute, a prisoner must still file their petition for post-
conviction relief within the time allowed by the statute of
limitations. If the petition is not accompanied by either a filing
fee or an application for partial exemption from the fee, and if the
prisoner fails to correct this deficiency within a reasonable period
of time, the court can dismiss the petition. In other words,
prisoners must still pursue their claims diligently, and they must
still pay a filing fee. Our interpretation of the statute preserves
these legislative aims. At the same time, we avoid the injustice
that might occur under the State's interpretation of the statute
the unfairness of having petitions for post-conviction relief
declared untimely because of an administrative process that is
beyond a prisoner's power to control or ameliorate.
Mullin filed his petition for post-conviction relief
within the time allowed by the governing statute of limitations.
When the clerk's office notified Mullin that his petition could not
be processed until he either paid the filing fee or applied for a
partial exemption from the fee, Mullin acted diligently to cure this
defect. Accordingly, the superior court should not have dismissed
Mullin's petition.
The order dismissing Mullin's petition is REVERSED.
Mullin's petition is reinstated, and this case is remanded to the
superior court for renewed proceedings on that petition.
FOOTNOTES
Footnote 1:
See AS 12.72.020(a)(3)-(4). See also SLA 1995, ch. 79, sec.
40
(setting a special period of limitations for defendants convicted
before July 1, 1994).
Footnote 2:
Under AS 9.19.010, courts are prohibited from granting
prisoners total exemption from filing fees.
Footnote 3:
164 F. 685, 686-87 (9th Cir. 1908).
Footnote 4:
The clerk's office must refer the request to a judicial
officer, the judicial officer must examine the request and issue a
decision, this decision must be communicated to the clerk's office
and a written order prepared, and then this order must be
distributed.
Footnote 5:
172 F.3d 1068 (8th Cir. 1999) (en banc).
Footnote 6:
171 F.3d 499 (7th Cir. 1999).
Footnote 7:
Nichols, 172 F.3d at 1071; Jones, 171 F.3d at 500.
Footnote 8:
Nichols, 172 F.3d at 1077.
Footnote 9:
Jones, 171 F.3d at 503. See also the Advisory Committee Note
to Federal Appellate Rule 3(e). Appellate Rule 3(e) states that,
"[u]pon filing a notice of appeal, the appellant must pay the
district clerk all required fees." But the accompanying Advisory
Committee Note declares that, in accordance with prevailing law, "[an
appellant's] failure to prepay the statutory filing fee does not
constitute a jurisdictional defect."
