Touch N' Go®,
the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch
N' Go's Website to see how.
Flanigan v. State (5/5/00) ap-1672
Flanigan v. State (5/5/00) ap-1672
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
JAMES J. FLANIGAN, )
) Court of Appeals No. A-7116
Appellant, ) Trial Court No. 4FA-96-1908CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1672 May 5, 2000]
)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: J. John Franich, Assistant
Public Advocate, Fairbanks, and Brant G. McGee, Public Advocate,
Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge and COATS, Chief Judge, concurring.
In 1982, James J. Flanigan was convicted of first-degree
murder. [Fn. 1] On direct appeal, this court affirmed Flanigan's
conviction and his 60-year sentence. [Fn. 2] More than 12 years
later, on August 15, 1996, Flanigan filed an application for post-
conviction relief. Flanigan'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 erroneously
rejected his excuse for filing late.
Discussion
Is Flanigan's petition within the scope of Habeas Corpus?
Alaska Criminal Rule 35.1 governs post-conviction relief
proceedings. As Criminal Rule 35.1(b) states: "[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." The rule provides that an application must be filed
within the time limitations set out in AS 12.72.020. [Fn. 3] In
addition to the time limitations in AS 12.72, Ch. 79 sec. 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 12.72. [Fn.
4]
Flanigan was convicted and sentenced in 1982. The
savings clause of Ch. 79 sec. 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 35.1. 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. [Fn. 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. [Fn. 6]
By design, the Suspension Clause is not a limitation on state
regulation of habeas corpus, [Fn. 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. [Fn. 8]
But that understanding of the scope of common law habeas corpus did
not always prevail. In Fay v. Noia, [Fn. 9] a case decided after
the Alaska Constitutional Convention, the Supreme Court reviewed
the history of the writ and decided that "[a]t 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[.]" [Fn. 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, [Fn. 11] Justice Powell
criticized that expansive view of the scope of the common law writ.
Justice Powell opined that the scope of the common law writ
perceived by the majority in Fay v. Noia depended on "a revisionist
view of the historic function the writ was meant to perform." [Fn.
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 has been said, in the
nature of a writ of error which brings 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? [Fn. 13]
Chief Justice Marshall's answer to his own rhetorical question was
yes. [Fn. 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. [Fn. 15]
Chief Justice Rehnquist also relied on Ex parte Watkins for
guidance on the scope 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. [Fn.
16]
Article I, Section 13 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.
[Fn. 17] That review highlighted the major distinguishing factor
in the various suspension clauses: some state constitutions, like
Oklahoma, barred any suspension of the writ; [Fn. 18] the federal
constitution and other states, like Louisiana, permitted suspension
of the writ in times of rebellion or invasion. [Fn. 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. [Fn. 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. [Fn. 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
scope than existed at common law.
Decisions that examined the common law scope of habeas
corpus prior to the Alaska Constitutional Convention, both from
Alaska [Fn. 22] and other states, [Fn. 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,
[Fn. 24] our supreme court appeared to depart from that limited
view of the scope 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. [Fn. 25]
Compliance with the right to counsel is such a
fundamental requirement of due process that it is an essential
prerequisite to jurisdiction. [Fn. 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 scope 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 scope of the common law
writ of habeas corpus, Flanigan's argument that the time bar in Ch.
79 sec. 40, SLA 1995 violates the suspension clause of the Alaska
constitution is immaterial, because Flanigan's petition did not
plead a claim within the scope of the common law writ of habeas
corpus. Although Article I, Section 13 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 scope
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.
Was Flanigan's excuse for delay erroneously rejected?
Next, Flanigan argues that Judge Pengilly erred by
rejecting his claim under AS 12.72.020(b)(1)(B) [Fn. 27] that he
was prevented from filing his claim because the prison law library
was not updated. But Flanigan did not allege that any agent of the
state actively prevented him from filing his petition. Nor did
Flanigan establish due diligence he provided no explanation for
the delay of more than a decade before he filed his petition. From
our review of the record, we conclude that Judge Pengilly did not
err by rejecting Flanigan's excuse.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, with whom COATS, Chief Judge, joins, concurring.
I concur in the court's decision that the legislated time
limits on petitions for post-conviction relief do not violate the
habeas corpus clauses of the federal and state constitutions. I
write separately to clarify my reasons for reaching this
conclusion.
James Flanigan was convicted of murder in 1982, and this
court affirmed his conviction in 1984. [Fn. 1] In 1995, the
legislature established time limits for filing a petition for post-
conviction relief. [Fn. 2] Under AS 12.72.020(a)(3)(A), a petition
for post-conviction relief must be filed within two years of the
date judgement was entered against the defendant or, if the
defendant appealed the conviction, within one year of the date the
judgement was affirmed on appeal. For defendants like Flanigan
whose convictions became final before July 1, 1994, the legislature
established a special deadline of July 1, 1996. [Fn. 3]
In August 1996, Flanigan filed a petition for post-
conviction relief, but this petition was dismissed because Flanigan
missed the July 1st filing deadline. He now asserts that the
legislated filing deadlines amount to an abrogation or "suspension"
of the writ of habeas corpus for inmates who miss the pertinent
deadline. That is, Flanigan argues that the legislature's action
violates both Article I, Section 9 of the United States
Constitution and Article I, Section 13 of the Alaska Constitution.
Flanigan's federal constitutional argument is easily
decided. Article I, Section 9 of the United States Constitution
declares, in pertinent part:
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.
Article I, Section 9 does not purport to limit the power of the
states, but rather the power of the federal Congress. [Fn. 4]
Thus, even if the Alaska Legislature had tried to abolish the writ
of habeas corpus, the legislature's action would not violate Arti-
cle I, Section 9 of the federal Constitution. (And, of course, the
federal writ of habeas corpus would remain in force in Alaska.)
Flanigan's state constitutional argument requires more
attention. Article I, Section 13 of the Alaska Constitution
provides:
Habeas Corpus.
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.
As can be seen, this section of the Alaska Constitution tracks the
language of the federal provision. The drafters of Article I of
our state constitution stated in their accompanying commentary that
the Alaska habeas corpus provision was "identical with the Federal
Constitution" except for the additional language addressing
"imminent invasion". [Fn. 5]
If, as Flanigan claims, the time limits on petitions for
post-conviction relief amount to a "suspension" of the writ of
habeas corpus, then AS 12.72.020(a)(3)(A) would violate Article I,
Section 13 of our state constitution. But in order to determine
whether AS 12.72.020 restricts the availability of the
constitutionally guaranteed writ of habeas corpus, we must
ascertain what the drafters of the Alaska Constitution meant when
they spoke of the "writ of habeas corpus".
As noted above, the drafters of our state's habeas corpus
provision essentially copied the language of the federal
Constitution. At the constitutional convention, the debate
concerning Article I, Section 13 focused exclusively on choosing
appropriate language to deal with attacks that did not involve
immediate physical invasion. The delegates did not discuss the
meaning of the phrase "writ of habeas corpus". [Fn. 6] From this,
I infer first, that the delegates to the constitutional convention
concurred in the drafters' statement that Article I, Section 13 was
substantively "identical" to the federal provision, and second, that
the delegates intended Article I, Section 13 to protect the same
right of habeas corpus guaranteed by the federal Constitution. So,
to understand what right is protected by Article I, Section 13 of
the Alaska Constitution, we must examine the meaning of "writ of
habeas corpus" as that phrase is used in the federal Constitution.
The "writ of habeas corpus" guaranteed by Article I,
Section 9 of the federal Constitution is the writ that was known at
common law as "habeas corpus ad subjiciendum". [Fn. 7] This writ
rose to prominence as "The Great Writ" during the sixteenth century,
when the common law courts began to use habeas corpus as a means of
granting relief to persons imprisoned by order of the King's
Council without judicial authorization. [Fn. 8] The writ "won its
place as the most important safeguard of personal liberty ... when
employed against the crown and its officers ... to elicit the cause
for an individual's imprisonment and to ensure that he was
released, admitted to bail, or promptly tried[.] [Fn. 9]
But although the writ of habeas corpus was available to
anyone held against their will, the writ was not intended to
provide a general method for collaterally attacking a criminal
conviction. Rather, the writ simply commanded the jailor or other
custodian to produce legal justification for holding the
petitioner. In the case of prison inmates, this usually meant that
the jailor had to produce the judgement authorizing the
petitioner's incarceration. Once the criminal judgement was
produced, the habeas corpus petitioner could attack the judgement
only on the ground that the issuing court had lacked jurisdiction
over the petitioner or the petitioner's offense. [Fn. 10]
This is not to say that the common law forbade collateral
attacks on a criminal conviction. Such attacks were allowed
(within a limited scope), but not under the rubric of habeas
corpus. Rather, the writs of coram nobis and coram vobis were the
vehicles for attacking a conviction based on errors committed by
the trial court. [Fn. 11]
In modern times, we are used to seeing the writ of habeas
corpus employed as a method of collaterally attacking a criminal
judgement for constitutional error. This is because the United
States Congress, in 1867, passed a statute broadening the scope of
the habeas corpus remedy. Under the Habeas Corpus Act of 1867, any
federal or state prisoner could collaterally attack a criminal
conviction on the ground that it was obtained in violation of
either the constitution or the laws of the United States. [Fn. 12]
As the Supreme Court explained in Johnson v. Zerbst:
Congress has expanded the rights of a
petitioner for habeas corpus[,] and the effect [of this change] is
to substitute for the bare legal review that seems to have been the
limit of judicial authority under the common-law practice ... a
more searching investigation [into] the causes of [the
petitioner's] detention, and the court, upon determining the actual
facts, is to dispose of the [petitioner] as law and justice
require.
There [is] no doubt of the authority of
Congress to thus liberalize the common-law procedure on habeas
corpus in
order to safeguard the liberty of all persons
within the jurisdiction of the United States against infringement
through any violation of the Constitution or a law or treaty [of
the United States, and thus] a prisoner in custody pursuant to the
final judgment of a state court of criminal jurisdiction may have
a judicial inquiry in a court of the United States into the very
truth and substance of the causes of [the prisoner's] detention[.]
304 U.S. at 466, 58 S.Ct. at 1024 (footnotes and internal
quotations omitted).
But this broadened writ of habeas corpus was a creature
of statute. The common-law writ guaranteed by the federal
Constitution remained limited to jurisdictional attacks on a
criminal judgement. The Supreme Court reiterated the limited
nature of the constitutionally-guaranteed writ in United States v.
Hayman (decided in 1952):
Although the objective of the Great Writ long
has been the liberation of those unlawfully imprisoned, at common
law a judgment of conviction rendered by a court of general
jurisdiction was conclusive proof that the confinement was legal.
Such a judgment [by itself] prevented issuance of the writ[.]
In 1867, Congress changed the common law
rule by extending the writ of habeas corpus to "all cases where any
person may be restrained of his or her liberty in violation of the
constitution, or of any treaty or law of the United States", and
[by] providing for inquiry into the facts of the detention.
Hayman, 342 U.S. 205, 210-11; 72 S.Ct. 263, 268 (1952).
Alaska decisions from the turn of the century recognized
this limitation on the scope of the remedy afforded by the writ of
habeas corpus. See In re Burkell [Fn. 13] and Mabry v. Beaumont
[Fn. 14].
In late 1955, when the drafters of our state's habeas
corpus provision copied the language of the federal habeas corpus
clause, and in early 1956, when the delegates to the Alaska
Constitutional Convention considered and debated the draft of
Article I, Section 13, there was no discussion concerning the
meaning or scope of the writ. By that time, the United States
Supreme Court had unambiguously explained the limited nature of the
constitutionally guaranteed writ, contrasting it with the broader
statutory writ enacted by Congress. Given this historical
backdrop, I conclude that the framers of the Alaska Constitution
intended our habeas corpus provision to guarantee the same limited
common-law writ guaranteed by the United States Constitution.
This was the view of our first state legislature when, in
1962, they enacted AS 12.75 the chapter of the Alaska Statutes
that codifies the writ of habeas corpus and the procedures
governing habeas corpus litigation. AS 12.75 codifies a narrow
writ of habeas corpus, modeled after the common-law writ guaranteed
by the federal and state constitutions. AS 12.75.020 declares:
A person properly imprisoned or restrained by
virtue of a legal judgment [issued by] a
competent tribunal [having] civil or criminal
jurisdiction ... shall not be allowed to
prosecute the writ.
And AS 12.75.110 declares:
No court or judge, on the return of a writ of
habeas corpus, may inquire into the legality
or justice of any order, judgment, or [court]
process specified in AS 12.75.020 or into the
justice, propriety, or legality of a
commitment for contempt made by a court ...
according to law, and charged in the
commitment, as provided by law.
In other words, the writ of habeas corpus codified in AS 12.75 is
not to be used as a writ of error (other than to test the court's
jurisdiction). [Fn. 15]
I acknowledge that the United States Supreme Court more
recently adopted a substantially broader view of the common-law
writ of habeas corpus in Fay v. Noia. [Fn. 16] Justice Brennan,
writing for the majority, rejected the notion that habeas corpus
inquiry was traditionally limited to questions of jurisdiction.
[Fn. 17] Instead, Justice Brennan asserted that "at the time that
the Suspension Clause was written into our Federal Constitution
..., there was respectable common-law authority for the
proposition that habeas [corpus] was available to remedy any kind
of governmental restraint contrary to fundamental law" [Fn. 18]
that is, as a means of collaterally attacking any criminal
judgement that was imposed in violation of due process.
Justice Brennan's view of the common-law writ was
vigorously contested at the time by Justice Harlan (writing for the
minority in Fay v. Noia). [Fn. 19] Since that time (1963), the
view adopted by the Fay v. Noia majority has been criticized by
scholars. [Fn. 20] Justice Powell, concurring in Schneckloth v.
Bustamonte [Fn. 21], and joined by three other members of the court
[Fn. 22], labeled Justice Brennan's construction of the common-law
writ a "revisionist view" of history. [Fn. 23] Justice Powell
declared that "recent scholarship has cast grave doubt on Fay's
version of the writ's historic function". [Fn. 24]
Despite these criticisms, the Supreme Court has never
disavowed what it said in Fay v. Noia about the scope of the
common-law writ of habeas corpus. Thus, Fay's interpretation of
the common-law writ, though clouded, remains the controlling
interpretation for purposes of federal constitutional law. But in
the present appeal, this court must decide an issue of state
constitutional law: What did the drafters of Alaska's Constitution
intend when they wrote Article I, Section 13?
To answer this question, we need not try to assess the
current validity or likely future of Fay v. Noia. It is sufficient
to note that Fay v. Noia was decided in 1963 after the Alaska
Constitution was drafted and adopted, and after the Alaska
Legislature codified the writ of habeas corpus in AS 12.75.
Whatever might be said about Fay v. Noia's construction of the writ
of habeas corpus, it is clear that Fay represents a sharp departure
from the view of the writ espoused in the Supreme Court's earlier
opinions, beginning with Ex Parte Watkins in 1830 and continuing
through United States v. Hayman in 1952. It is this pre-Fay view
of the writ that guided the drafters of Alaska law. I therefore
conclude that Article I, Section 13 of the Alaska Constitution
incorporates and guarantees the common-law writ of habeas corpus as
described in pre-Fay jurisprudence. In 1974, the Alaska
Supreme Court enacted a post-conviction relief rule Criminal Rule
35(b), later renumbered as Criminal Rule 35.1. This rule gives
criminal defendants the right to collaterally attack their
convictions and sentences on a variety of grounds. One of the
listed grounds for post-conviction relief is that the defendant's
"conviction or sentence is ... subject to collateral attack upon
any ground [formerly] available under any common law, statutory, or
other writ [or] proceeding[.]" [Fn. 25] And the rule itself
declares that it is "intended to provide a standard procedure for
accomplishing the objectives of all of the constitutional,
statutory[,] or common law writs." [Fn. 26]
That is, Criminal Rule 35.1 codifies not only the
constitutionally guaranteed writ of habeas corpus ad subjiciendum
but also the common-law writs of error (coram nobis and coram
vobis) that authorized a limited collateral attack on the facts
underlying a criminal conviction. Indeed, the scope of post-
conviction relief available under Criminal Rule 35.1 exceeds what
was available under the common-law writs; it rivals the scope of
relief available under the statutory writ of habeas corpus enacted
by the federal Congress.
To the extent that Criminal Rule 35.1 codifies the
constitutionally guaranteed writ of habeas corpus, one could
plausibly argue that the legislature is powerless to amend Criminal
Rule 35.1 in such a manner as to prevent prisoners from pursuing
this writ. That is, Article I, Section 13 of our state
constitution may well prohibit the legislature from enacting a law
that prevents a prisoner from requiring the government to produce
the criminal judgement that justifies the prisoner's incarceration,
or that prevents the prisoner from challenging the jurisdiction of
the court which issued that judgement.
But Flanigan's case does not raise this issue. Flanigan
is imprisoned because he was convicted of murder. There is no
question that Flanigan is imprisoned by virtue of a criminal
judgement issued by the superior court. And although Flanigan's
petition for post-conviction relief raises a multitude of issues,
he does not assert that the superior court lacked jurisdiction over
him or lacked subject-matter jurisdiction over his offense. Thus,
Flanigan's collateral attack on his conviction is not a petition
for "writ of habeas corpus" as that phrase is used in Article I,
Section 13 of the Alaska Constitution.
Because Flanigan's petition is not a petition for writ of
habeas corpus, Article I, Section 13 does not guarantee him the
right to pursue his petition. His right to collaterally attack his
conviction on the various grounds alleged in his petition stems
from court rule and from statute. And because his right derives
from court rule and statute, the legislature ostensibly has the
power to modify, limit, or even abolish that right.
I say "ostensibly" because I believe that, under certain
circumstances, other provisions of our state constitution may limit
the legislature's power in this area. But that debate is premature
in Flanigan's case. The precise question presented in this appeal
is whether Article I, Section 13 of the Alaska Constitution
guarantees a criminal defendant the right to collaterally attack
their conviction on the basis of alleged procedural and legal
errors committed in the trial court. For the reasons explained
here, I conclude that the answer is "no". I note that the supreme
courts of Oregon and Washington have reached this same conclusion,
using similar reasoning. [Fn. 27]
Accordingly, I join in the decision to uphold the
superior court's dismissal of Flanigan's petition for post-
conviction relief.
FOOTNOTES
Footnote 1:
AS 11.41.100(a)(1)(A).
Footnote 2:
See Flanigan v. State, Memorandum Opinion and Judgment No. 583
(Alaska App., May 30, 1984).
Footnote 3:
See Alaska Criminal Rule 35.1(c).
Footnote 4:
Ch. 79, sec. 40, SLA 1995.
Footnote 5:
See Swain v. Pressley, 430 U.S. 372, 384-85 (1977) (Burger,
C.J., concurring).
Footnote 6:
See Morgan's Louisiana & T.R. & S.S. Co. v. Board of Health,
118 U.S. 445, 467 (1886).
Footnote 7:
See Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).
Footnote 8:
See Ex parte Watkins, 28 U.S. 193, 201-02 (1830); Wood v.
Brush, 140 U.S. 278, 280 (1891).
Footnote 9:
372 U.S. 391 (1963) (overruled in part by Wainwright v. Sykes,
433 U.S. 72 (1977)).
Footnote 10:
Id. at 426.
Footnote 11:
412 U.S. 218 (1973).
Footnote 12:
Id. at 252 (Powell, J., concurring).
Footnote 13:
Id. at 253 (quoting Ex parte Watkins, 28 U.S. at 201-02).
Footnote 14:
Id.
Footnote 15:
518 U.S. 651, 663 (1996).
Footnote 16:
Id.
Footnote 17:
See Public Administration Service, 1 Constitutional Studies:
Civil Rights and Liberties (November 8, 1955).
Footnote 18:
See, e.g., Oklahoma Constitution, Article II, Section 10: "The
privilege of the writ of habeas corpus shall never be suspended by
the authorities of this state."
Footnote 19:
See, e.g., 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."
Footnote 20:
Proceedings of the Alaska Constitutional Convention, Part 2,
Pgs. 1358-65; 1450-54.
Footnote 21:
Id.
Footnote 22:
See Mabry v. Beaumont, 6 Alaska 512, 515 (D.Alaska Terr.
1922); Roberts v. State, 445 P.2d 674, 676 (Alaska 1968).
Footnote 23:
See Grieve v. Webb, 158 P.2d 73, 74 (Wash. 1945); In re
Forest, 113 P.2d 582, 584 (N.M. 1941).
Footnote 24:
404 P.2d 644, 647 & n.11 (Alaska 1965).
Footnote 25:
Id.
Footnote 26:
See Johnson v. Zerbst, 304 U.S. 458, 467 (1938).
Footnote 27:
AS 12.72.020(b)(1)(B) provides:
[A] court may hear a claim 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.
FOOTNOTES (Concurrence)
Footnote 1:
See Flanigan v. State, Memorandum Opinion No. 583 (Alaska
App., May 30, 1984).
Footnote 2:
See SLA 1995, ch. 79, sec. 9.
Footnote 3:
See SLA 1995, ch. 79, sec. 40.
Footnote 4:
See Wayne R. LaFave and Jerold H. Israel, Criminal Procedure
(1984), sec. 27.2(a), Vol. 3, pp. 289-290.
Footnote 5:
See Report of the Committee on Preamble and Bill of Rights
(December 15, 1955), reprinted in Proceedings of the Alaska
Constitutional Convention, Part 6, Appendix 5, p. 66.
This one change the reference to "actual or imminent
invasion" was born of the Cold War and advances in military
technology. This language was inserted to deal with the
possibility that an enemy might attack and subjugate Alaska by
bombs and missiles, before any foreign troops physically invaded
the state. As originally proposed, the habeas corpus provision
used the phrase, "imminent peril". This phrase was amended to
"imminent invasion" during floor debate. See Proceedings of the
Alaska Constitutional Convention, Part 2, pp. 1358-1366, 1450-54.
Footnote 6:
The entire debate on Article I of the Alaska Constitution is
found in Proceedings, supra, Part 2, pp. 1280-1503.
Footnote 7:
See LaFave and Israel, Criminal Procedure, supra, sec.
27.1(b),
Vol. 3, pp. 285-86; Fay v. Noia, 372 U.S. 391, 399-400; 83 S.Ct.
822, 827-28; 9 L.Ed.2d 837 (1963); Petition of Runyan, 853 P.2d
424, 429 (Wash. 1993); Bartz v. State, 839 P.2d 217, 224 (Or.
1992).
Footnote 8:
See LaFave and Israel, sec. 27.1(b), Vol. 3, p. 286.
Footnote 9:
Dallin H. Oaks, Habeas Corpus in the States 1776-1865, 32
Univ. Chicago Law Rev. 243, 244 (1965) (quoted in LaFave and
Israel, sec. 27.1(b), Vol. 3, p. 288).
Footnote 10:
See LaFave and Israel, sec. 26.4(a), Vol. 3, pp. 222-23, and
sec.
27.1(b), Vol. 3, pp. 287-88. See also Schneckloth v. Bustamonte,
412 U.S. 218, 254; 93 S.Ct. 2041, 2061; 36 L.Ed.2d 854 (1973)
(Powell, J., concurring); United States v Hayman, 342 U.S. 205,
210-11; 72 S.Ct. 263, 268; 96 L.Ed. 232 (1952); Johnson v. Zerbst,
304 U.S. 458, 465; 58 S.Ct. 1019, 1023; 82 L.Ed. 1461 (1938); Ex
Parte Watkins, 28 U.S. 193, 202-03; 7 L.Ed. 650 (1830).
Footnote 11:
LaFave and Israel, sec. 27.1(c), Vol. 3, pp. 288-89.
Footnote 12:
See LaFave and Israel, sec. 27.2(b), Vol. 3, pp. 292-96. See
United States v. Hayman, 342 U.S. at 210-11, 72 S.Ct. at 268;
Johnson v. Zerbst, 304 U.S. at 465-67, 58 S.Ct. at 1023-24.
Footnote 13:
2 Alaska Rpts. 108 (1903).
Footnote 14:
6 Alaska Rpts. 512 (1922).
Footnote 15:
AS 12.75.020 and AS 12.75.110 carry forward the limitation on
the scope of the writ that appeared in the 1913, 1933, and 1949
codifications of Alaska law. See, e.g., CLA 1949, sec. 66-26-2:
Persons 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 such judgment or decree, shall not be allowed to
prosecute the writ.
and sec. 66-26-17:
But no court or judge, on the return of a writ of
habeas corpus, has power to inquire into the legality or justice of
any order, judgment, or process specified in section 66-26-2 ... .
These two sections mirrored similar provisions found in CLA 1913,
sec.sec. 1399 and 1414, and CLA 1933, sec.sec. 4133 and 4151.
Footnote 16:
372 U.S. 391, 83 S.Ct. 822 (1963).
Footnote 17:
See 372 U.S. at 404, 83 S.Ct. at 830.
Footnote 18:
372 U.S. at 405, 83 S.Ct. at 831.
Footnote 19:
372 U.S. at 448-463, 83 S.Ct. at 853-861.
Footnote 20:
See LaFave and Israel, sec. 27.1(b), Vol. 3, pp. 287-88.
Footnote 21:
412 U.S. 218, 250; 93 S.Ct. 2041, 2059; 36 L.Ed.2d 854 (1973).
Footnote 22:
See 412 U.S. at 249-250, 93 S.Ct. at 2059.
Footnote 23:
See 412 U.S. at 252, 93 S.Ct. at 2060.
Footnote 24:
412 U.S. at 253, 93 S.Ct. at 2061.
Footnote 25:
Criminal Rule 35.1(a)(6), formerly Criminal Rule 35(b)(1)(F).
Footnote 26:
Criminal Rule 35.1(b), formerly Criminal Rule 35(b)(2).
Footnote 27:
See Petition of Runyan, 853 P.2d 424 (Wash. 1993); Bartz v.
State, 839 P.2d 217 (Or. 1992).
