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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEVEN CLEVELAND, )
) Court of Appeals No. A-10236
Appellant, ) Trial Court No. 2KB-07-96 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2278 - October 8, 2010
Appeal from the Superior Court, Second Judicial District,
Kotzebue, Richard H. Erlich, Judge.
Appearances: Andrew Steiner, Bend, Oregon, Doug Miller,
Assistant Public Advocate, and Rachel Levitt, Public Advocate,
Anchorage, for the Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
MANNHEIMER, Judge, concurring.
Steven Cleveland appeals the dismissal of his application for post-
conviction relief, arguing that the statute of limitations that applied to his application was
extended because he had filed a motion to correct an illegal sentence before the appeal
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from his conviction was concluded. We conclude that the statute of limitations was not
extended by the pendency of Cleveland's motion to correct an illegal sentence. We also
conclude that the superior court did not commit plain error by failing to consider issues
that Cleveland did not raise in the court below, including the doctrine of equitable tolling
and his due process right of access to the courts.
Background
Steven Cleveland was convicted of second-degree assault and second-
degree sexual assault. Cleveland appealed, and this court affirmed his convictions and
his sentence.1 His petition for hearing to the Alaska Supreme Court was denied on
August 26, 2004.
While Cleveland's petition for hearing was pending before the supreme
court, the United States Supreme Court issued its decision in Blakely v. Washington.2 On
August 19, 2004 (before the supreme court denied his petition), Cleveland filed a motion
in the superior court under Alaska Criminal Rule 35(a), in which he argued that his
sentence was illegal because the sentencing judge had relied on aggravating factors that
were not submitted to a jury or proven beyond a reasonable doubt. The trial court denied
3
Cleveland's motion on January 27, 2005. This court affirmed the trial court's order, and
Cleveland did not seek further review.
On April 10, 2007, Cleveland filed a pro se application for post-conviction
relief, in which he alleged that he received ineffective assistance from his original trial
1 Cleveland v. State, 91 P.3d 965 (Alaska App. 2004).
2 542 U.S. 296 (2004).
3 Cleveland v. State, 143 P.3d 977 (Alaska App. 2006).
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counsel. Newly appointed counsel then filed an amended application for post-conviction
relief in December. The amended application also alleged that trial counsel had been
ineffective in handling Cleveland's direct appeal.
The State moved to dismiss the application for post-conviction relief as
untimely. The State argued that the action was barred by the one-year statute of
limitations contained in AS 12.72.020(a)(3)(A), because Cleveland's conviction became
final on August 26, 2004, when the Alaska Supreme Court denied his petition for
hearing, but Cleveland did not file his post-conviction relief action until April 10, 2007.
In response, Cleveland argued that the limitation period should have been tolled while
he pursued his motion to correct an illegal sentence. The superior court granted the
State's motion to dismiss, ruling that the motion did not toll the statute of limitations that
applied to the application for post-conviction relief.
Cleveland now appeals.
Discussion
This case requires us to interpret AS 12.72.020(a)(3), a statute of limitations
that applies to an application for post-conviction relief. When we interpret a statute, we
"consider its language, its purpose, and its legislative history, in an attempt to give effect
to the legislature's intent, with due regard for the meaning the statutory language
conveys to others."4
The statute in question provides that if a criminal defendant unsuccessfully
appeals their conviction, any post-conviction action must be filed within "one year after
4 Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation , 145 P.3d 561, 566
(Alaska 2006) (quoting Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234 (Alaska
2003)).
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----------------------- Page 4-----------------------
the court's decision is final under the Alaska Rules of Appellate Procedure."5 Under the
rules of appellate procedure, an appellate decision of this court becomes final when the
time expires for filing a petition for hearing, or if a petition is filed, on the day after the
Alaska Supreme Court resolves the petition.6 This interpretation of the appellate rules
is consistent with numerous prior decisions determining when a decision of this court
becomes final.7
This construction of the statute is consistent with the purpose of the statute
as expressed in its legislative history. AS 12.72.020 was included in House Bill 201,
enacted in 1995.8 In the governor's transmittal letter proposing this legislation, he
explained that the purpose of the bill was to "promote the finality of convictions,
preserve the sanctity of jury verdicts, minimize the litigation of stale claims, and prevent
the unjustified dismissal of a criminal case when reprosecution is not possible."9 The
governor also stated that the bill was intended to "set limits on the ability of prisoners to
challenge their convictions years after they have already pursued normal appellate
procedures and lost."10
Cleveland argues that the statute is tolled during the pendency of a motion
to correct an illegal sentence. But there is nothing in the language of the statute that
5 AS 12.72.020(a)(3)(A).
6 See Alex v. State, 210 P.3d 1225, 1227 (Alaska App. 2009) (interpreting Alaska
Appellate Rules 507(b) & 512(a)).
7 Id . (citing cases).
8 See Ch. 79, § 9, SLA 1995.
9 1995 House Journal 489.
10 1995 House Journal 490.
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supports Cleveland's interpretation. The legislature specifically provided for exceptions
to the statute of limitations when an applicant suffers from a mental or physical
disability, when a state agent physically interferes with a timely claim, and when the
application is based on newly discovered evidence.11 None of these exceptions is
triggered by the filing of a motion to correct an illegal sentence.
There is likewise nothing in the appellate rules that suggests that the
deadline for an application for post-conviction relief is extended by a motion to correct
an illegal sentence. In other circumstances, the rules are explicit when a post-judgment
request extends or tolls the period for post-judgment review.12 In particular, a motion to
correct an illegal sentence will extend the time limit for an appeal from a criminal
conviction.13 But there is nothing in the appellate rules that affects the deadline for filing
an application for post-conviction relief.
Cleveland's construction would also be contrary to the intent of the statute
as expressed in the legislative history. A motion to correct an illegal sentence may be
filed "at any time."14 If such a motion extended the deadline for an application for post-
conviction relief, then this deadline would also be extended indefinitely. This
construction would be contrary to the purposes of the statute to "promote the finality of
convictions" and "minimize the litigation of stale claims."15
11 See AS 12.72.020(b)(1)-(2).
12 See Alaska R. App. P. 204(a)(3) (listing motions that extend the time for filing appeals
in civil cases); Alaska R. App. P. 204(a)(4) (listing motions that extend the time for filing
appeals in criminal cases).
13 Alaska R. App. P. 204(a)(4).
14 Alaska R. Crim. P. 35(a).
15 1995 House Journal 489.
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We accordingly conclude that an appellate decision affirming a criminal
conviction becomes final on the day after the Alaska Supreme Court denies a petition for
hearing from this court.16 The decision affirming Cleveland's conviction became final
on August 27, 2004. Cleveland did not file his application for post-conviction relief until
April 10, 2007. His application was untimely because it was filed more than one year
after the appellate decision was final.
On appeal, Cleveland argues that the statute of limitations is subject to
equitable tolling. He did not raise this issue in the trial court, so he must show plain error
before we will consider it.17 In other words, Cleveland must establish that the trial
court's failure to consider equitable tolling was "so obvious that any competent judge or
attorney would have recognized it."18
The cases Cleveland cites suggest that he is relying on a theory of equitable
tolling that applies when "extraordinary circumstances beyond a prisoner's control make
it impossible to file a petition on time."19 This theory of equitable tolling has never
previously been accepted by the Alaska courts.20 And Cleveland asserts no extraordinary
16 See Alex, 210 P.3d at 1227.
17 Kaiser v. Umialik Ins ., 108 P.3d 876, 881 (Alaska 2005).
18 Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
19 Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003) (quoting Miles v. Prunty,
187 F.3d 1104, 1107 (9th Cir. 1999)), cert. granted, judgment vacated, Adams v. Brambles ,
542 U.S. 933 (2004).
20 See Kaiser, 108 P.3d at 882.
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circumstances that prevented him from filing during the statutory period.21 We conclude
that the trial court's failure to apply equitable tolling was not plain error.
In one of the headings in his brief, Cleveland also asserts that the statute of
limitations should be extended under the doctrine of equitable estoppel. But he cites no
legal authority discussing this theory.22 Cleveland has abandoned this issue by his failure
to submit an adequate argument on appeal.23
Cleveland also argues that the statute of limitations on post-conviction
claims violates his right to due process of law. He did not raise this issue in the superior
court, so he must show plain error before we will decide this claim.
A statute of limitations that deprives a litigant of access to the courts may
violate due process.24 But this right of access "is ordinarily implicated only when a
legislative enactment or governmental action erects a direct and 'insurmountable barrier'
in front of the courthouse doors."25 For example, a civil plaintiff's right of access is not
21 Id . (explaining that equitable tolling may be based on legal barriers preventing access
to the court or extraordinary events like wars); Spitsyn v. Moore, 345 F.3d 796, 800-01 (9th
Cir. 2003) (allowing equitable tolling for egregious performance of appointed counsel).
22 See generally Kaiser, 108 P.3d at 880 (discussing the proof required for this type of
claim).
23 See Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1088 (Alaska 2001)
(explaining that an issue given only cursory treatment in the argument section of a brief will
not be considered on appeal).
24 See Sands ex rel. Sands v. Green, 156 P.3d 1130, 1135 (Alaska 2007).
25 Id . at 1134 (citing Varilek v. City of Houston, 104 P.3d 849, 853-55 (Alaska 2004)).
7 2278
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unconstitutionally burdened by a rule prohibiting their lawyer from loaning them money
for living expenses, since that rule does not prohibit the plaintiff from filing suit.26
There was no plain or obvious due process violation here. Cleveland's
motion to correct an illegal sentence did not affect the claims of ineffective assistance of
counsel that he now seeks to raise in his post-conviction application. Cleveland had all
the information he needed to raise these post-conviction claims after his initial appeal
was completed. There was thus no "insurmountable barrier" that prevented Cleveland
from bringing his post-conviction application within the period provided by the statute
of limitations.
Conclusion
We therefore AFFIRM the superior court's order dismissing the application
for post-conviction relief.
26 In re K.A.H., 967 P.2d 91, 95-96 (Alaska 1998).
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MANNHEIMER, Judge, concurring.
I write separately because my analysis of this case differs somewhat from
the analysis presented in the lead opinion.
The underlying legal issue in this case is how to interpret the wording of
AS 12.72.020(a)(3), a statute of limitations that imposes deadlines for filing a petition
for post-conviction relief.
With respect to petitions for post-conviction relief that relate to a defen
dant's underlying criminal conviction, the pertinent portion of AS 12.72.020(a)(3)(A)
declares that "if the conviction was appealed, [the petition for post-conviction relief
can be filed no later than] one year after the court's decision is final under the Alaska
Rules of Appellate Procedure." 1 Our task in this appeal is to ascertain the meaning of
the clause, "after the court's decision is final under the Alaska Rules of Appellate
Procedure".
As explained in Judge Bolger's lead opinion, Cleveland filed a direct appeal
of his criminal convictions. This Court affirmed those convictions on May 28, 2004; see
Cleveland v. State, 91 P.3d 965 (Alaska App. 2004). Cleveland then filed a petition for
hearing, asking the Alaska Supreme Court to review our decision.
Under the Alaska Appellate Rules, the fact that Cleveland filed a timely
petition for hearing meant that this Court's decision would not become final until the day
after the supreme court resolved Cleveland's petition for hearing. See Appellate Rules
507(b) and 512(a)(2). The supreme court denied Cleveland's petition on August 26,
1 The statute makes an exception for petitions that attack an allegedly illegal sentence.
According to the statute, "there is no time limit on [such] claim[s]."
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2004. 2 Thus, under the Alaska Appellate Rules, this Court's decision (i.e., our decision
resolving Cleveland's direct appeal of his criminal convictions) became final on Friday,
August 27, 2004.
Seemingly, then, AS 12.72.020(a)(3)(A) gave Cleveland one year - until
the close of business on Friday, August 26, 2005 - to seek post-conviction relief
relating to his criminal convictions. Cleveland's petition for post-conviction relief was
not filed until April 2007 - substantially after this deadline.
But the conclusion that Cleveland's petition was filed too late rests on the
premise that, when AS 12.72.020(a)(3)(A) speaks of "the court's decision [being] final
under the Alaska Rules of Appellate Procedure", the statute is referring to the finality of
the appellate court's decision. Cleveland argues that this statutory language means
something different - that it refers to the finality of the trial court's decision.
If the statute were interpreted as Cleveland suggests, this might mean that
Cleveland's petition for post-conviction relief was timely.
As explained in Judge Bolger's lead opinion, Cleveland re-opened the trial
court proceedings in August 2004 by filing a motion to correct illegal sentence (a motion
based on the United States Supreme Court's just-issued decision in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). The superior court
denied Cleveland's sentence-correction motion toward the end of January 2005, and this
Court affirmed the superior court's decision on August 25, 2006. See Cleveland v. State,
143 P.3d 977 (Alaska App. 2006). Cleveland did not petition the supreme court to
review our decision - so, under the Alaska Appellate Rules, our decision in this
sentence-correction litigation became final on Tuesday, September 12, 2006 (the day
2 See "Order" dated August 26, 2004, in Cleveland v. State, Supreme Court File No. S
11513.
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after the 15-day time limit for petitioning the supreme court expired). See Appellate
Rules 303(a)(1); 502(a).
Cleveland argues that, because he pursued a motion to correct his allegedly
illegal sentence, the superior court's judgement against him was effectively re-opened
during the litigation of that motion. In other words, Cleveland contends that the superior
court's judgement lost its previous finality, and that the judgement did not become final
again until (1) the superior court resolved Cleveland's sentence-correction motion and
(2) the superior court's ruling was affirmed on appeal. If this argument is correct, then
Cleveland had one year from September 12, 2006 to file his petition for post-conviction
relief - and he met this deadline by filing his petition in April 2007.
For two separate reasons, I conclude that Cleveland's proposed
interpretation of AS 12.72.020(a)(3) is mistaken.
My first reason is that Cleveland's interpretation of the statute is contrary
to the wording and legislative history of the statute.
AS 12.72.020(a)(3)(A) speaks of a court's decision being final "under the
Alaska Rules of Appellate Procedure". The Appellate Rules - specifically, Rules
507(b) and 512 - provide rules for determining when an appellate court's decision
becomes final, but the Appellate Rules do not define when a trial court's decision
becomes final. Indeed, most appellate proceedings (all except the interlocutory petitions
allowed under Appellate Rules 402 and 404) are premised on the fact that the trial court's
decision is already final when the appeal commences.
This is because a litigant's right to pursue an appeal does not arise until the
lower court issues its final judgement or order. 3 Although the effect or enforcement of
3 See State v. Walker, 887 P.2d 971, 973-74 (Alaska App. 1994).
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that final judgement or order may be stayed (in whole or in part) while the case is on
appeal, the trial court's judgement or order is indeed "final" during the pendency of the
appeal - because, if the trial court's decision were not final, the litigants would not be
able to pursue the appeal.
Thus, when AS 12.72.020(a)(3)(A) speaks of "the court's decision
[becoming] final under the Alaska Rules of Appellate Procedure", this clause appears to
refer to the appellate court's decision.
This reading of the statute is supported by the legislative history of
AS 12.72. Chapter 72 of Title 12 was enacted in 1995 as a thorough-going revision of
the law governing petitions for post-conviction relief. See SLA 1995, ch. 79, § 9, which
originated as House Bill 201 (19th Legislature). During the House Judiciary
Committee's consideration of this bill, Deputy Attorney General Laurie Otto explained
the intent of AS 12.72.020(a)(3). Ms. Otto told the Committee:
[I]t is [appropriate] to say [to criminal defendants] that,
at some point, you should not be able to appeal over and over
... again, [and] that you have to put your issues together in
one appeal. It is appropriate to say that if you are going to
file a post-conviction relief action, which [effectively] is a
second round of appeals ... , you have to do it within two
years of the date of the conviction or within one year of the
date that your appeal was decided.
Minutes of the House Judiciary Committee for April 10, 1995, Tape 95-43, Side A, log
number 720 (emphasis added).
My second reason for rejecting Cleveland's interpretation of the statute is
that his interpretation runs counter to a series of supreme court decisions construing the
effect of a motion for relief from judgement under Alaska Civil Rule 60(b).
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Like Criminal Rule 35(a), which allows either party to ask the trial court
to re-examine an earlier judgement on the ground that the sentence is illegal, Civil Rule
60(b) allows the parties to ask the trial court to re-examine an earlier judgement on
various factual and legal grounds. And just as there is no time limit for filing a motion
to correct an illegal sentence, there is no fixed time limit for seeking relief under Civil
Rule 60(b)(4), (b)(5), or (b)(6), other than the requirement that the motion be filed
"within a reasonable time". A third similarity between Criminal Rule 35(a) and Civil
Rule 60(b) is that, even though motions filed under these rules might be viewed as
collateral attacks on the trial court's judgement, they are not treated as separate actions
but rather are pursued as motions in the underlying court case.
One clause of Civil Rule 60(b) declares that a motion for relief from
judgement under Rule 60(b) "does not affect the finality of [the] judgment or suspend
its operation." In a series of cases beginning with Wellmix, Inc. v. Anchorage, 471 P.2d
408 (Alaska 1970), and Alaska Placer Co. v. Lee, 502 P.2d 128 (Alaska 1972), the
Alaska Supreme Court - relying on this portion of Civil Rule 60(b) - has held that the
filing of a Rule 60(b) motion does not restart the time for filing an appeal from the
judgement. Alaska Placer, 502 P.2d at 131, Wellmix, 471 P.2d at 411.
Even though Civil Rule 60(b) motions are filed in the underlying case
(rather than being treated as a separate case and assigned a new file number of their
own), the litigation of a Civil Rule 60(b) motion is considered a separate litigation for
purposes of appeal. If a party appeals the trial court's decision on the Rule 60(b) motion,
the party can only seek review of issues arising from the litigation of the Rule 60(b)
motion, and can not raise issues relating to the original litigation that led to the
underlying judgement. Alaska Placer, 502 P.2d at 131, Wellmix, 471 P.2d at 411. In the
words of our supreme court, "an appeal from a denial of a Rule 60(b) motion does not
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bring up the underlying judgment for review." McCracken v. Davis, 560 P.2d 771, 776
(Alaska 1977); accord, Alaska Placer, 502 P.2d at 131; Wellmix, 471 P.2d at 411.
The supreme court explained that "[i]f the rule were otherwise" - that is,
"[if] one could appeal from a final judgment after the [normal] time [limit] had expired
by utilizing a [Rule] 60(b) motion" - "this would circumvent the rule limiting the time
within which appeals may be taken and would frustrate the sound policy of having
finality in litigation." Alaska Placer, 502 P.2d at 131; Wellmix, 471 P.2d at 411.
See also Lowe v. Severance, 564 P.2d 1222, 1224 (Alaska 1977), and
Brown v. State, 563 P.2d 275, 278 (applying the same limitation to appeals of a trial
court's denial of a motion for reconsideration).
As I explained earlier, Criminal Rule 35(a) operates in many respects like
a motion for relief from judgement under Civil Rule 60(b). Like Civil Rule 60(b),
Criminal Rule 35(a) provides an open-ended procedural mechanism for asking the
superior court to re-examine an earlier judgement (on one specific ground: that a
criminal sentence is illegal). Because of this, I believe that the same rules described in
Wellmix and Alaska Placer also govern the litigation of Criminal Rule 35(a) motions.
I acknowledge that Alaska Appellate Rule 204(a)(4) identifies motions for
"correction [of] a sentence under Criminal Rule 35" as one type of motion that tolls the
deadline for filing an appeal in a criminal case - but only if the motion "[is] made
within the 30-day period following the date shown on the clerk's certificate of
distribution [contained] on judgment". In other words, a motion under Criminal Rule
35(a) tolls the time for filing an appeal in a criminal case only if the Rule 35(a) motion
is filed before the litigant's normal 30-day deadline for filing an appeal expires.
Cleveland's Rule 35(a) motion was filed long after the 30-day appeal deadline specified
in Appellate Rule 204(a)(4).
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For these reasons, I conclude that, with the possible exception of Rule 35(a)
motions that are filed within the 30-day deadline specified in Appellate Rule 204(a)(4),
the filing of a Criminal Rule 35(a) motion does not affect the finality of the underlying
criminal judgement, nor does it restart the time for filing an appeal from that judgement.
Although Cleveland was certainly entitled to appeal the superior court's resolution of his
Criminal Rule 35(a) motion, the points he could pursue in that appeal were restricted to
the issues raised during the litigation of his sentence-correction motion. He was not
entitled to use that appeal as a vehicle for raising challenges to the underlying criminal
judgement.
Following this same reasoning, I conclude that the filing of a Criminal Rule
35(a) motion does not affect the finality of the underlying criminal judgement for
purposes of AS 12.72.020(a)(3). That is, it does not affect the calculation of the time
limit for filing a petition for post-conviction relief that attacks the underlying judgement.
For these two reasons, I interpret AS 12.72.020(a)(3) as referring to the
finality of the appellate court's decision (as opposed to the trial court's decision), and
why I join my colleagues in concluding that Cleveland's petition for post-conviction
relief was time-barred.
15 2278
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