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Hertz v. State (9/15/00) ap-1686
Hertz v. State (9/15/00) ap-1686
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
SIDNEY R. HERTZ, )
) Court of Appeals No. A-7279
Appellant, ) Trial Court No. 3AN-98-11506 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1686 September 15, 2000]
)
Petition for Review from the Superior Court, Third Judicial
District, Anchorage, Elaine M. Andrews, Judge.
Appearances: Sidney R. Hertz, in propria persona, Florence,
Arizona, 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, Stewart, Judge, and Rabinowitz,
Senior Supreme Court Justice.
[Mannheimer, Judge, not participating.]
STEWART, Judge.
On December 10, 1998, Sidney R. Hertz filed a complaint in the Anchorage
Superior Court entitled "Application for Writ of Habeas Corpus for Ineffective Assistance
of Counsel." On December 31, 1998, Superior Court Judge Elaine M. Andrews issued a sua
sponte order that directed Hertz to refile his complaint as an application for post- conviction
relief under Criminal Rule 35.1. Hertz claims that Judge Andrews erred by issuing this order.
We disagree and affirm the order of the superior court.
Facts and proceedings
In 1984, Sidney R. Hertz was indicted on one count of first-degree murder.
Following a jury trial, Hertz was convicted of second-degree murder. Superior Court Judge
J. Justin Ripley sentenced Hertz to a forty-year term and restricted Hertz's parole eligibility
for twenty years. On direct appeal, Hertz challenged his conviction and sentence, which this
court affirmed. [Fn. 1]
Hertz has also filed several applications for post-conviction relief. We affirmed
the eventual denial or dismissal of each of Hertz's previous post-conviction relief applications.
See Hertz v. State, 755 P.2d 406 (Alaska App. 1988) (remanding with instructions that Hertz
be afforded assistance of counsel in pursuing his initial post-conviction relief application);
Hertz v. State, Memorandum Opinion and Judgment No. 2358 (Alaska App., February 19,
1992); [Fn. 2] Hertz v. State, Memorandum Opinion and Judgment No. 2477 (Alaska App.,
July 29, 1992); [Fn. 3] Hertz v. State, Memorandum Opinion and Judgment No. 3069 (Alaska
App., January 11, 1995); [Fn. 4] Hertz v. State, Memorandum Opinion and Judgment No.
3880 (Alaska App., September 2, 1998). [Fn. 5] We also upheld the superior court's denial
of Hertz's motion to modify his sentence. See Hertz v. State, Memorandum Opinion and
Judgment No. 3828 (Alaska App., June 3, 1998). [Fn. 6]
Here, Hertz appeals the superior court's order directing him to refile his
complaint as an application for post-conviction relief. Hertz argues that this order effectively
dismisses his complaint for habeas corpus. As Hertz concedes, the grounds for relief that he
asserts below were raised (and rejected) in his earlier applications for post-conviction relief.
He points out that under AS 12.72.020(a), [Fn. 7] his pending application for post-conviction
relief is subject to dismissal.
Discussion
Judge Andrews relied on Civil Rule 86(m) (the rule governing habeas corpus
procedures) to direct Hertz to refile his complaint as an application for post-conviction relief.
Civil Rule 86(m) provides:
This rule does not apply to any post-conviction proceeding
that could be brought under Criminal Rule 35.1. The court shall treat such a complaint as
an application for post-conviction relief under Criminal Rule 35.1 and, if necessary, transfer
the application to the court of appropriate jurisdiction for proceedings under that rule.
Hertz contends that Judge Andrews could not apply this rule to order him to refile his
complaint as an application for post-conviction relief. Hertz claims that a trial judge can order
a complaint for habeas corpus to be refiled as an application for post-conviction relief only
if it "could be brought under Criminal Rule 35.1." Because his pending application is subject
to dismissal under several subsections of AS 12.72.020(a), he claims that his complaint for
habeas corpus is not one that "could be brought under Criminal Rule 35.1." Given this
circumstance, Hertz concludes that Judge Andrews could not apply Civil Rule 86(m) to his
case because his case is likely to be dismissed if it is processed as an application for post-
conviction relief. [Fn. 8]
Under Criminal Rule 35.1, a person may apply for post-conviction relief if the
person claims "that the conviction or the sentence was in violation of the constitution of the
United States or the constitution or laws of Alaska[.]" [Fn. 9] Also, Criminal Rule 35.1
provides that the post-conviction procedure regulated by the rule "is intended to provide a
standard procedure for accomplishing the objectives of all of the constitutional, statutory or
common law writs." [Fn. 10]
In Hertz's superior court pleadings, he challenges the validity of his conviction
and sentence by claiming ineffective assistance of counsel on his direct appeal. He argues
generally that his appellate attorney's overall performance was poor and specifically that the
attorney should have addressed Judge Ripley's refusal to instruct the jury on self-defense.
These incompetence of counsel claims are grounded in the Sixth Amendment and article I,
section 11 of the Alaska Constitution. Thus, Judge Andrews did not err in applying Civil Rule
86(m) to Hertz's complaint because, in that complaint, Hertz sought relief on the
constitutionally-based claim of ineffective assistance of counsel. Because Hertz's complaint
for habeas corpus relief could be brought under Criminal Rule 35.1, Judge Andrews properly
applied Civil Rule 86(m) to direct Hertz to refile his action as an application for post-
conviction relief.
Furthermore, we reject Hertz's claim that Civil Rule 86(m) cannot apply to an
action that could be brought pursuant to Criminal Rule 35.1 but that might later be dismissed
because of a substantive or procedural shortcoming. Hertz provides no authority for such
an interpretation. And Hertz points to nothing in the rules to support this reading of Rule
86(m). In addition, that reading would subvert the legislature's intent underlying AS
12.72.020 and the amendment to Criminal Rule 35.1. There is substantial evidence that the
legislature intended to limit successive applications for post-conviction relief in any one case.
Governor Knowles' transmittal letter of February 27, 1995, accompanying House Bill 201
provides evidence of this legislative intent:
[This bill] set[s] limits on the ability of prisoners to
challenge their convictions years after they have already pursued normal appellate procedures
and lost. After a prisoner loses on direct appeal, current law allows the prisoner to pursue a
second or third round of challenges in state court. . . . This bill seeks to reduce the number
of third and subsequent rounds of challenges currently allowed under state law. This would
limit most prisoners to one direct appeal and one set of post-conviction relief proceedings
in the state court system and one set of post-conviction relief proceedings in the federal
system. [Fn. 11]
Hertz also states that ordering him to refile his complaint as an application for
post-conviction relief amounts to an unconstitutional suspension of the writ of habeas corpus.
But Hertz has not explained how refiling his action as an application for post-conviction relief
amounts to a suspension of the writ. The procedures that must be followed under Criminal
Rule 35.1 provide an orderly method for considering collateral attacks on a person's
conviction. Hertz has not argued that the process established by Criminal Rule 35.1 or its
predecessors is or was inadequate to litigate his claims. [Fn. 12]
Furthermore, it is not enough for Hertz to claim that he faces dismissal under
the post-conviction relief procedure and that the impending dismissal amounts to a suspension
of the writ. Many jurisdictions, including Alaska, have imposed limits on post-conviction
relief claims. [Fn. 13] Both time limits and procedural bars to successive post-conviction relief
applications have been upheld. In Felker v. Turpin, the Supreme Court ruled that a statutory
limitation on successive applications for habeas corpus relief did not violate the Suspension
Clause of the Constitution. [Fn. 14] And in McCleskey v. Zant, the Supreme Court ruled that
it was an abuse of the writ, and therefore prohibited, to file successive habeas corpus claims
without any explanation of why the petitioner did not raise the claims in his original
application. [Fn. 15] Other states have upheld limitations on successive post-conviction relief
claims. In Kills on Top v. State, the Montana Supreme Court ruled that grounds that a
petitioner could reasonably have raised on appeal are procedurally barred from consideration
in a post-conviction relief proceeding. [Fn. 16] In Dromiack v. Warden, Nevada State Prison,
the Nevada Supreme Court ruled that courts need not consider successive post-conviction
relief applications, unless the grounds for relief could not reasonably have been raised in the
original petition. [Fn. 17] Hertz has offered no convincing authority or argument why a
similar limitation under Alaska law would violate the anti-suspension clause of Article I,
Section 13 of the Alaska Constitution.
Still, Hertz maintains that he should be able to pursue his action in habeas corpus
and avoid the impending statutory bars in AS 12.72.020(a). To support this argument, Hertz
highlights a line from our supreme court's decision in McCracken v. Corey: "Historically,
res judicata did not operate as a bar to habeas corpus." [Fn. 18] Hertz also stresses another
quote from McCracken:
It is of the historical essence of habeas corpus that it lies to test
proceedings so fundamentally lawless that imprisonment pursuant to them is not merely
erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas
corpus proceedings . . . is really but an instance of the larger principle that void judgments
may be collaterally impeached. [Fn. 19]
We agree with that general premise -- that a person held under a void judgment can seek
redress in habeas corpus. We also recognize that AS 12.72.020(a) established explicit
limitations on successive applications for post-conviction relief. Arguably, if a post-conviction
relief applicant raised a claim that the underlying criminal judgment was void, a procedural
bar under AS 12.72.020(a) might be unconstitutional. [Fn. 20]
But Hertz acknowledges that he has previously raised his pending claims.
Furthermore, Hertz does not maintain that the superior court lacked personal or subject matter
jurisdiction of his case nor any other claim that the superior court's judgment is otherwise void.
Hertz's application below claims that his attorney's assistance during the direct appeal of his
conviction was deficient. But this is not an attack that claims that the superior court's
judgment is void. Because Hertz's application did not claim that the underlying judgment
was void, his claim that the superior court suspended the writ of habeas corpus by directing
him to refile his complaint as an application for post-conviction relief is without merit.
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Hertz v. State, Memorandum Opinion and Judgment No. 1225 (Alaska App.,
September 10, 1986). In that case, this court also concluded that: the trial court did not amend
the indictment by instructing the jury on second-degree murder; the trial judge did not err in
instructing the jury on second-degree murder over defense objection; Hertz's claim that the
second-degree murder instruction was incorrect was without merit; the trial court did not err
in instructing the jury that voluntary intoxication did not negate the culpable mental state for
extreme indifference murder; and Hertz did not establish prosecutorial misconduct. Id. at 4-6.
Footnote 2:
In Hertz, MO&J No. 2358, this court concluded that Hertz had waived his right to
counsel and had moved to dismiss his post-conviction relief application.
Footnote 3:
In Hertz, MO&J No. 2477, this court concluded that the superior court did not err in
dismissing Hertz's February 1991 post-conviction relief application, in which he asserted in
part that the trial court erred in instructing the jury on the lesser-included offense of second-
degree murder.
Footnote 4:
In Hertz, MO&J No. 3069, Hertz challenged the superior court's dismissal of his third
post-conviction relief application, in which he raised eight claims: (1) that he received
ineffective assistance of counsel on the merit appeal; (2) that the trial court erred in instructing
the jury on the lesser included offense of second-degree murder; (3) that the second-degree
murder instruction constructively amended the indictment; (4) that Hertz received ineffective
assistance of counsel in pursuing his post-conviction relief claims; (5) that Hertz had a conflict
of interest with the Public Defender Agency; (6) that Hertz received ineffective assistance
of counsel from the Public Defender Agency; (7) that the superior court erred in denying his
request for resubmission of the murder weapon to the FBI to test for fingerprints; (8) that the
superior court denied Hertz access to the courts. Id. at 3 n.2. This court affirmed the superior
court's dismissal of Hertz's third post-conviction relief application, explaining that Hertz had
previously filed for post-conviction relief and had not advanced a "sufficient reason" for failing
to raise his claims in his earlier application, that some of the issues had been decided, and
that some issues had been waived by Hertz. Id. at 2-3.
Footnote 5:
In Hertz, MO&J No. 3880, this court upheld the superior court's dismissal of Hertz's
fourth application for post-conviction relief that raised claims that had been raised in earlier
applications for post-conviction relief.
Footnote 6:
In Hertz, MO&J No. 3828, this court rejected Hertz's position that application of newly
amended Criminal Rule 35.1 to his case was an unconstitutional ex post facto violation. Id.at 3-4. And, this court concluded that the trial court did not err in dismissing Hertz's motion
to correct or modify his sentence. Id. at 4.
Footnote 7:
AS 12.72.020(a) provides:
A
claim may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure
if
(1) the
claim is based on the admission or exclusion of evidence at trial or on the ground that the
sentence is excessive;
(2) the
claim was, or could have been but was not, raised in a direct appeal from the proceeding that
resulted in the conviction;
(3) the
later of the following dates has passed, except that if the applicant claims that the sentence
was illegal there is no time limit on the claim:
(A) if
the claim relates to a conviction, two years after the entry of the judgment of the conviction
or, if the conviction was appealed, one year after the court's decision is final under the Alaska
Rules of Appellate Procedure;
(B) if
the claim relates to a court revocation of probation, two years after the entry of the court order
revoking probation or, if the order revoking probation was appealed, one year after the court's
decision is final under the Alaska Rules of Appellate Procedure;
(4) one
year or more has elapsed from the final administrative decision of the Board of Parole or the
Department of Corrections that is being collaterally attacked;
(5) the
claim was decided on its merits or on procedural grounds in any previous proceeding; or
(6) a
previous application for post-conviction relief has been filed under this chapter or under the
Alaska Rules of Criminal Procedure.
Footnote 8:
Under former Criminal Rule 35.1(h), which governed post-conviction relief procedures
and was less restrictive than the legislation that enacted AS 12.72.020, the superior court
could have properly denied Hertz's application. That rule provided:
Waive
r of or
Failure to Assert Claims. All grounds for relief available to an applicant under this rule must
be raised in the original, supplemental or amended application. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily, and intelligently waived in the
proceeding that resulted in the conviction or sentence or in any other proceeding the applicant
has taken to secure relief may not be the basis for a subsequent application, unless the court
finds a ground for relief asserted which for sufficient reason was not asserted or was
inadequately raised in the original, supplemental, or amended application.
Under former Rule 35.1(h), petitioners were barred from pursuing claims that could have been
raised in a previous post-conviction relief application, absent a showing of a "sufficient
reason" for not raising the claims. See Thompson v. State, 496 P.2d 651, 654-55 (Alaska
1972); Bangs v. State, 911 P.2d 1067, 1069 (Alaska App. 1996); Billingsley v. State, 807 P.2d
1102, 1106 (Alaska App. 1991). Under former Rule 35.1, Hertz would be precluded from
filing a post-conviction relief application because he did not assert a "sufficient reason" for
failing to raise his current claims for post-conviction relief in his prior applications, as required
by that rule.
Footnote 9:
Alaska Rule of Criminal Procedure 35.1(a)(1).
Footnote 10:
Alaska Rule of Criminal Procedure 35.1(b).
Footnote 11:
1995 House Journal 490. A transmittal letter constitutes substantial evidence of
legislative intent. See Flisock v. State, 818 P.2d 640, 645 (Alaska 1991); 2A Norman J.
Singer, Sutherland Statutory Construction sec. 48.05 (5th ed. 1992).
Footnote 12:
See Taggard v. State, 500 P.2d 238, 241 n. 7 (Alaska 1972) (The "writ of habeas corpus
is an extraordinary remedy and will not ordinarily be granted when there is another adequate
remedy.").
Footnote 13:
See, e.g., Colo.Rev.Stat.Ann. sec. 16-5-402 (West 1998); Fla.Stat.Ann. sec. 3.850;
Idaho
Code sec. 19-4902 (West Supp. 1998); 725 Ill.Comp.Stat.Ann. para. 5/122-1 (West 1992);
Iowa
Code Ann. sec. 822.3 (West 1994); Miss. Code Ann. sec. 99-39-5(2) (Supp. 1996);
Mo.R.Crim.P.
24.035, 29.15; Nev.Rev.Stat.Ann. sec. 34.800 (Michie 1996); N.J.Crim.Prac.Rule 3:22-12;
Or.Rev.Stat. sec. 138.510 (1997); S.D. Codified Laws sec. 21-27-3.2 (Michie Supp. 1997);
Utah
Code Ann. sec. 78-35a-107 (1996); Wyo.Stat.Ann. sec. 7-14-103 (Michie 1997).
Footnote 14:
See Felker v. Turpin, 518 U.S. 651, 662 (1996).
Footnote 15:
See McCleskey v. Zant, 499 U.S. 467, 488 (1991).
Footnote 16:
901 P.2d 1368, 1385-87 (Mont. 1995).
Footnote 17:
630 P.2d 751, 751-52 (Nev. 1981).
Footnote 18:
612 P.2d 990, 992 (Alaska 1980).
Footnote 19:
Id. at 992 (quoting Fay v. Noia, 372 U.S. 391, 423 (1963)) (citations omitted).
Footnote 20:
See, e.g., McCracken v. Corey, 612 P.2d 990, 992 n.6 (Alaska 1980); Taggard v. State,
500 P.2d 238, 242 (Alaska 1972); Perry v. State, 429 P.2d 249, 251-52 (Alaska 1967). In the Court of Appeals of the State of Alaska
Sidney R. Hertz, )
) Court of Appeals No. A-07279
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 9/15/00
)
Trial Court Case # 3AN-98-11506CI
Before: Coats, Chief Judge, Stewart, Judge, and Rabinowitz, Senior Supreme Court
Justice. [Mannheimer, Judge, not participating.]
It is Ordered:
1. The State's motion to publish this Court's unpublished decision in Memorandum
Opinion and Judgment No. 4262 which was issued on 8/16/00 is GRANTED.
2. Memorandum Opinion and Judgment No. 4262 is WITHDRAWN and is
SUPERSEDED by Opinion No. 1686 to be issued on 9/15/00.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Marilyn May
Distribution:
COA Judges
Central Staff Attorneys
Judge Elaine Andrews
Trial Court Appeals Division
West Publishing Company
Eric A Johnson
OSPA
310 K Street #308
Anchorage AK 99501
Sidney Hertz
Central Arizona Detention Center
P O Box 6200
Florence AZ 85232
