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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
| JEFFREY KOLODY, | ) |
| ) Court of Appeals No. A-9332 | |
| Appellant, | ) Trial Court No. 3PA-04-1675 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2134 December 21, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: David E. George, Anchorage, for
the Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Jeffrey Kolody was charged with several counts of
controlled substance misconduct. On December 9, 2004, while
these charges were pending, Kolody filed a petition for writ of
habeas corpus. In this petition, Kolody contended that he was
entitled to immediate release, and to dismissal of the charges
against him, because his court-appointed attorney had neglected
his case and had failed to give him competent representation.
Superior Court Judge Eric Smith denied Kolodys
petition. Judge Smith noted that Kolody could pursue his
complaints about his attorney by filing a motion or by otherwise
seeking relief in his underlying (and still pending) criminal
case. Accordingly, Judge Smith concluded that Kolody was not
entitled to raise these complaints in a petition for writ of
habeas corpus because Alaska Civil Rule 86(n) declares that the
writ of habeas corpus can not be used as a substitute for ... any
remedy incident to the proceedings in the trial court.
Kolody (who is now represented by a different attorney)
appeals this ruling.
In his habeas corpus petition to the superior court,
and again in his brief to this Court, Kolody asserts that his
trial attorneys incompetence and lack of zeal has led to Kolodys
loss of several constitutional and statutory rights. But the
underlying merit of these claims has never been litigated, and
Judge Smith has issued no ruling on any of these claims.
The sole issue presented in this appeal is whether
Judge Smith was correct when, pursuant to Civil Rule 86(n), he
dismissed Kolodys habeas petition on the ground that Kolody was
entitled to raise these complaints about his attorney in the
normal course of the underlying criminal proceedings.
(While this appeal was pending, Kolody and the State
agreed to resolve the underlying criminal case by having Kolody
enter a plea of no contest to one count of second-degree
controlled substance misconduct. Following an unsuccessful
attempt to withdraw that plea, Kolody was convicted and sentenced
to a presumptive term of five years imprisonment. Kolody has
appealed that judgement and sentence, see Kolody v. State, File
No. A-9646, and his appeal is currently in the briefing stage.)
We conclude that Judge Smith was correct to dismiss
Kolodys petition for writ of habeas corpus. Alaska Civil Rule
86(n) codifies the rule that the writ of habeas corpus is an
extraordinary remedy, and that litigants are not allowed to seek
habeas corpus relief if they are entitled to seek relief using
normal trial court or appellate procedures.
We note that this rule of Alaska law is the same as the
corresponding rule under federal law. The United States Supreme
Court has declared that the writ of habeas corpus is not intended
to serve the office of a writ of error even after [the] verdict
[in a criminal trial]; and, for still stronger reasons, it is not
available to a defendant before trial, except in rare and
exceptional cases.1 Thus, in federal court, a criminal defendant
must pursue other available remedies which generally means
following the orderly course of a trial and an appeal before
resorting to the writ of habeas corpus.2
Here, Kolody wanted to challenge his attorneys
performance in a pending criminal case. He could have sought
relief directly from the trial court in that case. Accordingly,
he was not entitled to file a petition for writ of habeas corpus.
The judgement of the superior court is AFFIRMED.
_______________________________
1 Johnson v. Hoy, 227 U.S. 245, 247; 33 S.Ct. 240, 241; 57
L.Ed. 497 (1913).
2 Johnson, 227 U.S. at 247, 33 S.Ct. at 241.
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