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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
DANIEL PAUL FISHER, )
) Court of Appeals No. A-11376
Appellant, ) Trial Court No. 3AN-12-7930 CI
) t/w 3AN-10-14491 CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2407 - December 20, 2013
Appeal from the Superior Court, Third Judicial District,
Anchorage, Andrew Guidi, Judge.
Appearances: Daniel Fisher, pro se, Wailuku, Hawaii. Timothy
W. Terrell, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
*
District Court Judge.
Judge ALLARD.
Daniel Paul Fisher filed a petition for writ of habeas corpus, raising issues
that could be pursued in an application for post-conviction relief under Alaska Rule of
* Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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Criminal Procedure 35.1. The superior court reviewed Fisher's habeas petition and sua
sponte dismissed it, instructing Fisher to refile his claim as an application for post-
conviction relief. Fisher filed a motion for reconsideration, pointing out that Alaska Rule
of Civil Procedure 86(m) requires the court to treat a habeas corpus petition as an
application for post-conviction relief if the claims can be brought under Criminal Rule
35.1. Relying on Hertz v. State ,1
the superior court denied Fisher's motion for
reconsideration.
Fisher appeals, arguing the superior court should have converted his petition
to an application for post-conviction relief. Because Civil Rule 86(m) requires the court
to treat Fisher's petition for habeas corpus as an application for post-conviction relief,
we reverse the dismissal of Fisher's case.
Discussion
Alaska Rule of Civil Procedure 86 governs petitions for writs of habeas
corpus. Subsection (m) states:
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.
As the superior court correctly noted, Fisher's petition for writ of habeas corpus involved
claims that could be raised in a post-conviction relief action under Criminal Rule 35.1.
Pursuant to Civil Rule 86(m), the superior court therefore should have converted Fisher's
petition into an application for post-conviction relief and allowed Fisher the opportunity
1 8 P.3d 1144 (Alaska App. 2000).
2407
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to amend his application to conform with the requirements of Criminal Rule 35.1. Instead,
the superior court dismissed Fisher's petition without prejudice and instructed him to file
an application for post-conviction relief.
The State argues that there is no direct conflict between the superior court's
actions and Civil Rule 86(m) because the superior court's order was not intended to
dismiss Fisher's case; it was only intended as a "pleading requirement" requiring Fisher
to file a new application that conformed to the requirements of Criminal Rule 35.1(d).
The State asserts that under the rules of civil procedure (which govern both habeas
petitions and post-conviction applications), the dismissal of a complaint does not
necessarily operate to dismiss the entire case. The State therefore argues that the superior
court acted within its discretion in dismissing Fisher's non-conforming pleading (the
habeas petition) and requiring him to file a new pleading that conformed to the
requirements of Criminal Rule 35.1.
Although the State may be correct about the superior court's intentions, it
is clear that the court system as a whole treated the superior court's order as a dismissal
of Fisher's entire case. After the court issued its order, Fisher's case was closed by the
clerk's office. To obtain any relief from the superior court, Fisher therefore needed to
do more than just file a pleading that conformed to the requirements of Criminal Rule 35.1.
He also needed to file all of the paperwork required to initiate a new case with an entirely
new case number, including payment of a new filing fee (or the documentation required
for waiver of the fee).
Moreover, when Fisher filed his motion for reconsideration pointing out that
Civil Rule 86(m) required the superior court to convert his action rather than simply
dismiss it, the superior court did not respond with an explanation that the action had been
converted to a Criminal Rule 35.1 action and that the court was simply directing Fisher
to file the necessary paperwork and amended pleadings. Instead, the court ruled that under
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2
Hertz v. State , the court had the discretion to dismiss the case and direct the defendant
to file a new application for post-conviction relief. The court apparently interpreted Hertz
as giving the lower courts this authority, notwithstanding the mandatory nature of the
directive in Civil Rule 86(m).3
But this is a misreading of the holding in Hertz . In Hertz, the superior court
ruled that the defendant's petition for writ of habeas corpus involved claims that could
be raised under Criminal Rule 35.1. The superior court dismissed the petition and directed
Hertz to re-file his claims as an application for post-conviction relief. Hertz appealed,
but not on the ground that the superior court should have treated his habeas petition as
an application for post-conviction relief under Civil Rule 86(m). Instead, Hertz argued
that the superior court was wrong on the underlying question of whether his claims could
be brought through a habeas petition. We affirmed, holding that Hertz's claims were
cognizable under Criminal Rule 35.1 and therefore could only be brought as an application
for post-conviction relief.4
We did not address the fact that the superior court had
dismissed the habeas petition rather than converting it as required under Civil Rule 86(m)
because that issue was not before us.
Hertz therefore does not stand for the proposition that the courts are within
their discretion to dismiss rather than convert a habeas petition. To the contrary, the courts
are obligated to follow the clear and mandatory directive of Civil Rule 86(m), and when,
as here, a defendant files a habeas petition that could be brought under Criminal Rule 35.1,
2 8 P.3d 1144 (Alaska App. 2000).
3 See also Harmon v. State, 2012 WL 1580776, at *2 (Alaska App. May 2, 2012)
(unpublished); Braswell v. State , 2001 WL 456091, at *2 (Alaska App. May 2, 2001)
(unpublished) (recognizing mandatory nature of directive to convert the action rather than
to dismiss it).
4 Hertz , 8 P.3d at 1147.
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the court is required to "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."
Conclusion
We REVERSE the superior court's judgment and REMAND Fisher's case
for further proceedings in accordance with this decision.
2407
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