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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MICHAEL L. McLAUGHLIN, | ) |
| ) Court of Appeals No. A-10140 | |
| Appellant, | ) Trial Court No. 3KN-07-00227 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2229 August 14, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kenai, Carl Bauman, Judge.
Appearances: Michael L. McLaughlin, pro se,
Kenai, Appellant. Kenneth M. Rosenstein,
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 Bolger, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Michael L. McLaughlin was convicted of felony driving
under the influence1 on May 5, 2004, after pleading no contest.
Nearly three years later, on March 21, 2007, McLaughlin filed a
pro se application for post-conviction relief. McLaughlin
admitted that he had filed the application outside of the statute
of limitations.2 But he relied on Alaska Civil Rule 60(b) to
argue that he was entitled to litigate the merits of his
application despite the fact that it was untimely because the
judgment was void.3 Superior Court Judge Carl Bauman dismissed
McLaughlins application on the ground that it was untimely.
McLaughlin appeals. We affirm.
Why we conclude that McLaughlin cannot use Civil
Rule 60(b) to circumvent the statute of
limitations for a post-conviction relief
application
Alaska Statute 12.72.010 and Alaska Criminal Rule 35.1
define the grounds and the procedures (other than a direct
appeal) by which a person who is convicted of a criminal offense
can attack a conviction. Alaska Statute 12.72.020 provides a
statute of limitations on applications for post-conviction
relief. McLaughlin admits that he filed his application beyond
this statute of limitations. However, McLaughlin relies on
portions of Civil Rule 60(b) to argue that the statute of
limitations should not bar him from challenging his conviction as
void.4
Civil Rule 60(b) authorizes a court to relieve a party
from a final judgment, order or proceeding for listed reasons in
a civil case.5 Alaska Statute 12.72.010 and Criminal Rule 35.1
apply when a person who has been convicted of a criminal offense
seeks relief from that conviction. Criminal Rule 35.1(b) states
that post-conviction relief is intended to provide a standard
procedure for accomplishing the objectives of all of the
constitutional, statutory or common law writs.6 Thus,
AS 12.72.010 and Criminal Rule 35.1 apply to the collateral
review of McLaughlins criminal conviction Civil Rule 60(b) does
not.
It is true that Criminal Rule 35.1(g) provides that the
civil rules (except Rule 26(a)(1) (4)) apply in post-conviction
relief actions. But this use of the rules of civil procedure is
meant merely to provide an orderly process for determining post-
conviction claims. The civil rules do not create an alternate
procedure for seeking relief from a criminal judgment. The
procedure for collateral attack of a criminal judgment is
explicitly set out in AS 12.72.010 and Criminal Rule 35.1(a).
Alaska Statute 12.72.010 and Criminal Rule 35.1 broadly
define the grounds upon which a person may institute a proceeding
for post-conviction relief. And McLaughlin has not argued that
his claims would have fallen outside the scope of that statute
and rule if he had filed them on time. He cannot now use the
civil rules to circumvent the statute of limitations stated in AS
12.72.020. The legislature did not intend for a person to be
able to evade this statute of limitations simply by claiming that
Civil Rule 60(b) applies.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
The question presented in this appeal is whether a
criminal defendant can employ Alaska Civil Rule 60(b) to
circumvent the limitation periods specified in AS 12.72.020 for
initiating a petition for post-conviction relief. I agree with
my colleagues that Civil Rule 60(b) can not be employed in this
manner, but I reach that conclusion for slightly different
reasons.
The first underlying question in this case is whether
Civil Rule 60(b) provides a method for attacking criminal
judgements as well as civil judgements. We noted, but did not
resolve, this issue in Wilson v. State, Alaska App. Memorandum
Opinion No. 2908 (May 4, 1994), 1994 WL 16196274 at *8-9.
As the majority opinion points out, it is dubious that
Civil Rule 60(b) offers a procedural method for criminal
defendants to collaterally attack their judgements. Rather, it
appears that the Alaska Legislature and the Alaska Supreme Court
intended AS 12.72 and Alaska Criminal Rule 35.1 to codify the
sole method for collaterally attacking a criminal judgement (that
is, attacking it other than by direct appeal).
This conclusion is bolstered by the supreme courts
enactment of subsection (m) of Civil Rule 86, the rule codifying
habeas corpus procedure in Alaska. Even though petitions for
writ of habeas corpus are the method for collaterally attacking a
criminal conviction under federal law,1 Civil Rule 86(m) declares
that, under Alaska law, this use of the habeas corpus remedy has
been superseded by the post-conviction relief procedure specified
in Criminal Rule 35.1 and that, if a defendant files a petition
for writ of habeas corpus whose object is to attack a criminal
conviction, [t]he court shall treat such a complaint as an
application for post-conviction relief under Criminal Rule 35.1.
Civil Rule 86(m) codifies the decision reached earlier
by this Court in Wood v. Endell, 702 P.2d 248 (Alaska App. 1985),
a case in which a prisoner filed a petition for habeas corpus
attacking his criminal conviction. Based on the Alaska Supreme
Courts discussion in Donnelly v. State, 516 P.2d 396, 398 n. 2
(Alaska 1973), we concluded that the post-conviction relief
procedures codified in Criminal Rule 35.1 were intended to
supersede the habeas corpus remedy, and thus a habeas corpus
petition attacking a criminal conviction should normally be
deemed a petition for post-conviction relief. Wood, 702 P.2d at
249 n. 1.
Likewise, a criminal defendant who attempts to attack a
criminal conviction by filing a motion under Civil Rule 60(b)
should be deemed to have initiated a petition for post-conviction
relief. This is, indeed, the result reached by several other
appellate courts who have confronted this issue.
See People v. Thomas, 195 P.3d 1162, 1165 (Colo. App.
2008); Hansen v. State, 71 P.3d 464, 467-68 (Idaho App. 2003);
Lottie v. State, 406 N.E.2d 632, 639 (Ind. 1980);2 State v.
Schlee, 882 N.E.2d 431, 433-34 (Ohio 2008); Jackson v. State,
unpublished, 2007 WL 2231072 at *1 (Del. App. 2007).
For these reasons, I agree with my colleagues that
Civil Rule 60(b) was not intended as a procedural vehicle for
criminal defendants seeking post-conviction relief.
(In contrast, see State v. Superior Court, 40 P.3d
1239, 1241 (Alaska App. 2002), where this Court held that
judgements ordering forfeiture of bail are primarily civil in
nature, even though they almost always arise from criminal
prosecutions, and thus Civil Rule 60(b) is available as a
procedural vehicle to seek relief from a judgement of bail
forfeiture.)
Moreover, I conclude that, even if Civil Rule 60(b)
were available as a procedural method for attacking a criminal
judgement, McLaughlins Rule 60(b) motion was untimely.
McLaughlin presented two underlying claims for relief.
His first claim is that his criminal conviction should be set
aside because the conviction was obtained through witness
tampering, the suborning and/or [proffering] of perjured
testimony, and criminal coercion.
This first claim is covered by Civil Rule 60(b)(3),
which provides for relief from judgements obtained by fraud ... ,
misrepresentation, or other misconduct of an adverse party.
However, Rule 60(b) declares that any claim for relief under
subsection (b)(3) must be made within a reasonable time, and in
any event not more than one year after the date of notice of the
judgment.
McLaughlin missed this one-year deadline, but he relies
on the Alaska Supreme Courts decision in Mallonee v. Grow, 502
P.2d 432, 436-37 (Alaska 1972), where the court held that this
one-year deadline does not apply to cases where the challenged
judgement was obtained through fraud upon the court.
(See Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976),
for a discussion of what constitutes a fraud upon the court as
opposed to other varieties of fraud.)
I assume (for purposes of argument) that when the State
obtains a criminal conviction through witness tampering and by
knowingly presenting perjured testimony, this conduct is
sufficiently egregious to constitute a fraud upon the court for
purposes of the Mallonee rule and thus the one-year deadline
would not apply to McLaughlins claim for relief.
Nevertheless, Mallonee holds that all claims for relief
under Civil Rule 60(b)(3) even claims involving a fraud upon the
court are subject to Rule 60(b)s general requirement that the
claim be made within a reasonable time. Mallonee, 502 P.2d at
437, quoting Rule 60(b). The question, then, is whether
McLaughlins claim was made within a reasonable time for purposes
of Rule 60(b). Because McLaughlins claim for relief was not
filed within the limitation period specified in AS 12.72.020 for
post-conviction relief actions, I conclude that it was not made
within a reasonable time for purposes of Civil Rule 60(b).
The Alaska Supreme Court addressed an analogous problem
in Alaska Truck Transport, Inc. v. Berman Packing Company, 469
P.2d 697 (Alaska 1970). The two parties to that litigation went
to court over a dispute about money, and the superior court
entered judgement in favor of Berman Packing.3 Eleven months
later, the losing party Alaska Truck Transport filed a motion
for relief under Civil Rule 60(b)(1), asserting that the superior
court had overlooked governing principles of law, and that these
legal doctrines required the court to enter judgement in favor of
Alaska Truck Transport.4
The Alaska Supreme Court noted that Alaska Truck
Transports motion for relief from judgement was made within the
one-year limitation period that applies to motions under
subsection (b)(1) of the rule.5 But the supreme court noted that
the one-year limitation period was simply the outer time limit
for bringing claims under subsection (b)(1) and that any claim
for relief under any of the provisions of Civil Rule 60(b) still
had to filed within a reasonable time.6
The supreme court then took up the issue of whether
Alaska Truck Transports claim for relief was filed within a
reasonable time. The supreme court held that, because the
underlying claim for relief was based on an assertion that the
lower court failed to follow governing law (in other words, it
was a claim that might have been raised on direct appeal), the
phrase reasonable time should be construed to mean no more than
30 days i.e., the time for taking an appeal so that Rule 60(b)
could not be used as a procedural method for circumventing the
time limits on appeals. Id. at 699-700.
The supreme court reiterated this principle in Rowland
v. Monsen, 135 P.3d 1036 (Alaska 2006):
Rowlands due process claims [in her
Civil Rule 60(b) motion] only reiterate the
argument she made [to the trial court] in her
August 2000 motion to reconsider. She
therefore knew of these potential grounds for
relief at the time the [trial courts]
underlying order [was] issued. Her
appropriate course would have been to appeal
the merits of the [trial courts] order at
that time. As Rule 60(b) is neither a
substitute for an appeal nor a device for
obtaining an extension of time for filing an
appeal, Rowland waived her right to seek Rule
60(b) relief on these claims.
Rowland, 135 P.3d at 1039-1040 (internal
footnote omitted).
McLaughlins case presents an
analogous situation. McLaughlin was aware of
the factual bases of his claims during the
litigation of his criminal case. Thus, he
could have raised these claims in a timely
petition for post-conviction relief. The
legislature has established time limits for
bringing post-conviction relief claims the
time limits codified in AS 12.72.020. Thus,
even if Civil Rule 60(b) theoretically
remained available to McLaughlin as a
procedural method for attacking his criminal
conviction, we would have to hold that, for
litigants in McLaughlins situation, the time
limits set forth in AS 12.72.020 constitute
the outer limits of the reasonable time for
filing a motion for relief under Civil Rule
60(b)(3). If we ruled otherwise, Civil Rule
60(b)(3) could be used to circumvent those
time limits and, as the Alaska Supreme Court
indicated in Alaska Truck Transport and
Rowland, this result is contrary to the
policy behind the rule.
Accordingly, even if Civil Rule
60(b) were potentially available as a means
for attacking a criminal judgement,
McLaughlins claim under Civil Rule 60(b)(3)
was untimely.
This leaves McLaughlins second
claim for relief. McLaughlins second claim
is that the superior court lost its
jurisdiction over him because his defense
attorney was subject to intimidation and
interference on the part of the State.
McLaughlin asserts that the State obstructed
the defense attorney to such an extent that
he (McLaughlin) was constructively denied
counsel. McLaughlin then argues that this
constructive denial of counsel deprived the
superior court of jurisdiction over him, and
the resulting judgement of conviction issued
by the superior court is therefore void.7
As McLaughlin explained in his
superior court pleadings, this claim is based
on several underlying factual assertions.
According to McLaughlin, the State
was tardy in making pre-trial disclosure of
evidence pertinent to his breath test result.
After the State finally produced this
evidence, McLaughlin suspected that it was
not authentic leading to an acrimonious
dispute between McLaughlin and his defense
attorney about whether to attack the
evidence. (According to McLaughlin, he wrote
a scathing letter to his defense attorney and
his attorneys supervisor, threatening them
with bar disciplinary proceedings.)
In addition, McLaughlin claimed
that his defense attorney was becoming
uncommunicative and uncooperative with
McLaughlin because the attorney was
overworked, and because of pressure exerted
by the prosecutor, and because the defense
attorney was ... in over his head[,] dealing
with a vastly more experienced [prosecutor].
In other words, McLaughlins claim
that he was constructively denied counsel is
based on assertions that his defense attorney
was both feckless and estranged from
McLaughlin.
McLaughlin wishes to categorize his
claim as a claim under Civil Rule 60(b)(4),
which provides for relief when the
[challenged] judgment is void. If this is a
correct characterization of McLaughlins
claim, then he is not subject to Rule 60(b)s
normal time limits for seeking relief
because the Alaska Supreme Court has
repeatedly held that motions to overturn a
void judgement under Civil Rule 60(b)(4) are
not subject to the same time constraints as
other motions under Civil Rule 60(b).8
However, the proper
characterization of McLaughlins claim for
relief in particular, whether McLaughlins
claim for relief is properly classified under
Civil Rule 60(b)(4) is a question of law to
be decided by the courts.9
For purposes of Civil Rule
60(b)(4), a judgement is void if the
defendant was not given proper notice of the
action and [adequate] opportunity to be heard
... or where there was a failure to comply
with [the] requirements ... necessary for the
valid exercise of power by the court.
Rowland, 135 P.3d at 1038.10 Specifically,
[a] judgment rendered [by a court] without
jurisdiction is void and is ... vulnerable to
attack pursuant to a Rule 60(b)(4) motion.
Balchen v. Balchen, 566 P.2d 1324, 1326
(Alaska 1977). Accord, State v. Superior
Court, 40 P.3d 1239, 1242-43 (Alaska App.
2002).
However, as our supreme court held
in Kenai Peninsula Borough v. English Bay
Village Corp., 781 P.2d 6 (Alaska 1989),
attacks on a judgement under Civil Rule
60(b)(4) i.e., assertions that the judgement
is void on the basis that the court lacked
authority to enter the judgement [must] be
limited to cases which involve an arrogation
of authority which the court clearly lacks.
781 P.2d at 10. As the supreme court
explained, unless Civil Rule 60(b)(4) is
limited in this fashion, judgements would be
considered void and, thus, attackable in
perpetuity merely because serious mistakes
have been made. Id.
Thus, a judgement is void only when
the court was not properly constituted, or
had no jurisdiction over a party or over the
subject matter of the litigation, or when the
party attacking the judgement was not given
proper notice of the action and an
opportunity to be heard, or when the court
otherwise failed to comply with the basic
requirements necessary for a valid exercise
of power by the court.11 Unless these types
of circumstances are present, a motion for
relief from a judgement can not (as a legal
matter) be deemed a claim under Civil Rule
60(b)(4) even though the litigant may have
labeled the claim as being brought under Rule
60(b)(4). Burrell v. Burrell, 696 P.2d 157,
163 n. 11 (Alaska 1984).
McLaughlin claims that he was
constructively denied counsel because, even
though he had a defense attorney, this
attorney was too inexperienced, and too
intimidated by the prosecutor, to adequately
represent McLaughlin and protect his
interests. But in Brockway v. State, 37 P.3d
427 (Alaska App. 2001), this Court held that
such circumstances do not constitute the kind
of denial of counsel that deprives a court of
jurisdiction:
[A] defendant [is] completely denied the
right to counsel ... [if] the defendant
ask[s] for counsel and [is] denied one or ...
[if] the defendant proceed[s] without counsel
and the trial judge did not obtain a knowing
waiver of the right to counsel. ... [A]s we
recognized in Flanigan v. State, [3 P.3d 372,
376 (Alaska App. 2000),] when a defendant is
completely deprived of the right to counsel,
it is equivalent to a lack of jurisdiction.
However, this exception is strictly
construed[:] it does not apply to instances
where the defendant had counsel but now
claims that his attorney was ineffective.
Brockway, 37 P.3d at 430 (internal footnotes
omitted).
Thus, even if McLaughlins attorney
labored under the types of disability that
McLaughlin alleges, McLaughlin was not
constructively denied counsel in a way that
would deprive the superior court of
jurisdiction over him and, therefore, the
judgement that the superior court issued
against McLaughlin is not void for purposes
of Civil Rule 60(b)(4). McLaughlin may wish
to label his claim for relief as a claim
under Civil Rule 60(b)(4), but it is not.
For all of these reasons, I concur
in the result reached by my colleagues:
McLaughlin can not employ Civil Rule 60(b) as
an alternative procedural vehicle for seeking
post-conviction relief when his request for
relief is untimely under AS 12.72.020.
_______________________________
1 AS 28.35.030(n).
2 See AS 12.72.020(a)(3)(A).
3 See Burrell v. Burrell, 696 P.2d 157, 163 n.11 (Alaska
1984) (noting that there is no time limit for attacking a void
judgment under Civil Rule 60(b)(4)).
4 See Alaska R. Civ. P. 60(b) (On motion and upon such terms
as are just, the court may relieve a party ... from a final
judgment, order or proceeding for the following reasons: ... (3)
fraud ... misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void.).
5 See Alaska R. Civ. P. 1 (The procedure in the superior
court ... shall be governed by these rules in all actions or
proceedings of a civil nature.).
6 See also AS 12.72.010(6) (authorizing use of the post-
conviction procedure for any claim that the conviction or
sentence is otherwise subject to collateral attack upon any
ground or alleged error previously available under the common
law, statutory law, or other writ, motion, petition, proceeding,
or remedy.).
1 See 28 U.S.C. 2254 (federal criminal convictions) and
2255 (state criminal convictions).
2 Overruled on other grounds in Ludy v. State, 784 N.E.2d
459 (Ind. 2003).
3 Alaska Truck Transport, 469 P.2d at 698.
4 Id.
5 Id. at 699.
6 Id. at 699.
7 See Johnson v. Zerbst, 304 U.S. 458, 467-68; 58 S.Ct.
1019, 1024-25; 82 L.Ed. 1461 (1938) (holding that when
a defendant is denied the right to counsel, this denial
of counsel deprives the court of jurisdiction and
renders void any ensuing judgement issued by the
court).
8 See Standifer v. State, 3 P.3d 925, 928 (Alaska 2000);
Burrell v. Burrell, 696 P.2d 157, 163 n. 11 (Alaska
1984); Kennecorp Mortgage & Equities, Inc. v. First
National Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska
1984).
9 See Ray v. Ray, 115 P.3d 573, 576 (Alaska 2005); Jensen
v. Froissart, 982 P.2d 263, 266 (Alaska 1999).
10Quoting Burrell v. Burrell, 696 P.2d 157, 163 n. 11
(Alaska 1984).
11Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966).
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