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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JASON EARL SELVESTER,
Court of Appeals No. A-11746
Appellant, Trial Court No. 3AN-13-8347 CI
(Related case: 3AN-11-13426 CR)
v.
STATE OF ALASKA, O P I N I O N
Appellee. No. 2452 - May 8, 2015
Appeal from the Superior Court, Third Judicial District,
Anchorage, Erin B. Marston, Judge.
Appearances: Jason Earl Selvester, in propria persona,
Anchorage, for the Appellant. Donald Soderstrom, Assistant
Attorney General, Office of Criminal Appeals, Anchorage,
and Michael C. Geraghty, Attorney General, Juneau, for the
Appellee.
Before: Mannheimer, Chief Judge, and Allard and Kossler,
Judges.
Judge MANNHEIMER.
While Jason Earl Selvester was awaiting trial for sexual assault, he filed a
pro se petition for writ of habeas corpus, raising a speedy trial claim that he could have
raised in his criminal case. Under Alaska law, a writ of habeas corpus can not be used
as a "substitute for ... any remedy incident to the proceedings in the trial court." Alaska
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Civil Rule 86(n). More specifically, in Kolody v. State , we observed that "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." 1
But instead of dismissing Selvester's habeas petition and directing Selvester
to pursue his speedy trial claim in his pending criminal case, the superior court
entertained Selvester's petition and denied Selvester's speedy trial claim on its merits -
both in an initial decision and in a subsequent decision on reconsideration.
Selvester now appeals the superior court's denial of his speedy trial claim
in the habeas corpus litigation.
Because Selvester could have raised his speedy trial claim by filing a
motion in his pending criminal case, it was error for the superior court to entertain
Selvester's speedy trial claim in a separate habeas corpus case, and it was error for the
court to decide that claim on its merits. The superior court should have dismissed
Selvester's habeas petition, without ever reaching the merits of his speedy trial claim,
and it should have directed Selvester to pursue his speedy trial claim in his ongoing
criminal case.
We must therefore vacate the superior court's decision. But we are also left
with a procedural problem created by the superior court's mistaken decision to let
Selvester litigate his speedy trial claim in the habeas corpus case.
It does not appear that Selvester ever independently raised his speedy trial
claim in his criminal case - the forum where it should have been raised. (We say this
because Selvester has filed a separate appeal of his convictions in that related criminal
case, 3AN-11-13426 CR, and Selvester has not included a speedy trial claim among his
1 Kolody v. State , 172 P.3d 842, 843 (Alaska App. 2007).
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"statement of points on appeal" in that other appeal. See Selvester v. State, Court of
Appeals File No. A-12025.)
One potential reason why Selvester did not separately raise his speedy trial
claim in his related criminal case is that his defense attorney did not wish to raise this
claim.
Selvester was represented by counsel in his criminal case, so it would have
been his attorney's decision (not Selvester's decision) whether to pursue a speedy trial
claim in that criminal case. 2 Conceivably, Selvester asked his attorney to raise a speedy
trial claim, but the attorney declined, so Selvester filed his pro se habeas petition to try
to litigate an issue his defense attorney in the criminal case refused to pursue.
On the other hand, it is conceivable that Selvester and his attorney never
discussed the speedy trial claim - that Selvester came up with this issue and then simply
chose to raise this claim independently in the habeas corpus action.
If this was the situation, then Selvester was potentially deprived of his right
to counsel - because he represented himself when he litigated the speedy trial claim in
the habeas corpus action, but he would have had the assistance of counsel if this claim
had been raised in the criminal case. And at least potentially, Selvester may have failed
to raise the speedy trial claim in his criminal case because he thought he already had an
appealable adverse ruling in the habeas corpus case.
If Selvester was indeed prejudiced by the superior court's actions in this
habeas corpus case - either in the way we described in the preceding paragraph, or in
some other way - Selvester must pursue post-conviction relief under Alaska Criminal
Rule 35.1 if he wishes to seek a remedy.
2 See McLaughlin v. State , 173 P.3d 1014, 1016 (Alaska App. 2007); Simeon v. State,
90 P.3d 181, 184 (Alaska App. 2004).
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----------------------- Page 4-----------------------
Conclusion
We VACATE the superior court's decision regarding the merits of
Selvester's speedy trial claim. The superior court should have dismissed the habeas
corpus litigation as soon as it became clear that Selvester was trying to litigate an issue
that could be raised in his related criminal case.
- 4 - 2452
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