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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MARVIN L. ROBERTS, | ) |
| ) Court of Appeals No. A-8716 | |
| Appellant, | ) Trial Court No. 4FA-03-1065 CI |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2115 August 10, 2007 |
| ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Ben J. Esch, Judge.
Appearances: Dick L. Madson, Law Offices of
Dick L. Madson, Fairbanks, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Marvin L. Roberts was convicted of second-degree
murder, first-degree robbery, and second-degree assault.1 We
affirmed his convictions as well as the convictions of his co-
defendant, Kevin Pease in Pease v. State.2
While that appeal was pending, Roberts filed an
application for post-conviction relief, alleging that he had
newly discovered evidence that required a new trial. The
superior court denied Robertss application, and we affirmed the
superior courts decision.3
About six months after this court affirmed Robertss
convictions on direct appeal, two journalism students from the
University of Alaska Fairbanks reported that the jurors in
Robertss and Peases case had, without court authorization,
engaged in a group experiment during their deliberations. Based
on this new information, both Pease and Roberts filed
applications for post-conviction relief.
The superior court allowed Pease to litigate his
application, but the court dismissed Robertss application based
on the provision of Alaskas post-conviction relief statute, AS
12.72.020(a)(6), that bars a defendant from pursuing an
application for post-conviction relief if a previous application
for post-conviction relief has been filed.
Because Roberts had already litigated a previous
application for post-conviction relief (the application based on
the claim of newly discovered evidence), the superior court
concluded that Roberts had no right to pursue a second
application even though this second application was concededly
based on information that was not known at the time Roberts filed
his first application.
Roberts now appeals the superior courts dismissal of
his second application.
In Grinols v. State,4 we explained that Alaska law has
traditionally limited a defendants right to pursue two or more
applications for post-conviction relief.5 Before the enactment
of our current post-conviction relief statutes (AS 12.72), the
governing court rule Alaska Criminal Rule 35.1(h) barred
defendants from pursuing a second or successive application for
post-conviction relief unless the defendant could demonstrate
good cause for failing to raise the claim in an earlier
application.
As we also explained in Grinols, the legislature
expressly repealed Criminal Rule 35.1(h) when it enacted AS
12.72.020(a)(6).6 That is, the legislature repealed a court rule
that barred successive applications for post-conviction relief
unless the defendant could demonstrate good cause for failing to
raise the claim earlier and replaced it with a statute that
seemingly erects an absolute bar to any successive application
for post-conviction relief even when there is a good reason why
the defendant could not raise the claim in an earlier
application.
In Grinols, we noted that [t]here is a real possibility
that [this] statute may lead to fundamental unfairness.7 For
instance, the statute would seemingly bar a second application
for post-conviction relief even in cases where new genetic
testing (i.e., testing that was unavailable when the defendant
litigated the first application) would convincingly demonstrate
the defendants innocence.8 And we squarely held in Grinols that,
despite AS 12.72.020(a)(6), a defendant who believes that they
received ineffective assistance of counsel during the litigation
of their first application for post-conviction relief must be
allowed to file a second application on this ground.9
Robertss case presents a related problem. Here, after
Roberts litigated (and lost) one application for post-conviction
relief, a potentially fatal flaw in the jurys deliberative
procedures came to light. The discovery of the jurys
unauthorized experiment would normally be addressed in an
application for post-conviction relief. In fact, Robertss co-
defendant, Pease, was allowed to seek post-conviction relief on
this basis. But because Roberts had already litigated an
application for post-conviction relief, the superior court ruled
that Roberts could not seek any remedy even though there was an
obvious reason why Roberts had failed to include the jury
experiment claim in his earlier application.
We note that federal caselaw provides some support for
interpreting AS 12.72.020(a)(6) in a less restrictive manner than
its literal wording might suggest. Under federal law, a prisoner
who wishes to file a second or successive petition for habeas
corpus relief must allege certain facts, and must additionally
obtain special permission from the appeals court.10 However, the
federal courts have held that a petition is not second or
successive if the petitioner had a legitimate excuse for failing
to raise the claim in a prior petition. See the extensive
discussion of this point in Lang v. United States.11
Conceivably, AS 12.72.020(a)(6) might be interpreted in
a similar fashion. Or, alternatively, there may be cases where
the need to provide an avenue for relief is so strong that, just
like in Grinols, we would conclude that the due process clause of
the Alaska Constitution requires an exception to the seemingly
absolute bar erected by AS 12.72.020(a)(6).
But we need not decide these issues in Robertss case
for we recently held that the jury experiment at issue here (the
jury experiment that provided the ground for both Robertss and
Peases applications for post-conviction relief) does not
undermine the result at Robertss and Peases trial. In other
words, even if Roberts were allowed to pursue this second
application, he would not be entitled to post-conviction
relief.12
For this reason, we AFFIRM the superior courts
dismissal of Robertss application for post-conviction relief.
_______________________________
1 AS 11.41.110(a), AS 11.41.500(a), and AS 11.41.200(a),
respectively.
2 54 P.3d 316 (Alaska App. 2002).
3 Roberts v. State, Alaska App. Memorandum Opinion and
Judgment No. 4723 (June 18, 2003), 2003 WL 21398896.
4 10 P.3d 600 (Alaska App. 2000).
5 Id. at 614-16.
6 Id. at 616.
7 Id.
8 Id. at 616-17.
9 Id. at 618.
10See 28 U.S.C. 2255 (2000) (providing that [a] second or
successive [application] must be certified as provided in section
2244 by a panel of the appropriate court of appeals) and 28
U.S.C. 2244(b) (2000) (requiring, inter alia, that the applicant
allege certain substantive facts, and that the application be
authorized by a three-judge panel).
11 474 F.3d 348, 351-52 (6th Cir. 2007). See also Burton v.
Waddington, 142 F. Appx 297, 298-99 (9th Cir. 2005) (citing
McCleskey v. Zant, 499 U.S. 467, 490, 111 S. Ct. 1454, 1468, 113
L. Ed. 2d 517 (1991)), vacated on other grounds sub nom. Burton
v. Stewart, ___ U.S. ___, ___, 127 S. Ct. 793, 797-99, 166 L. Ed.
2d 628 (2007).
12See State v. Pease, ___ P.3d ___, Alaska App. Opinion No.
2112 (July 27, 2007), 2007 WL 2143003.
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