Opinion
Court of Appeals No. A-10337.
July 27, 2011.
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge, Trial Court No. 2NO-07-198 Civ.
Jane B. Martinez, Anchorage, contract attorney for the Public Defender Agency, and Quinlan Steiner, Public Defender, 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.
MEMORANDUM OPINION
Ben Noyakuk appeals the superior court's dismissal of his petition for post-conviction relief. For the reasons explained in this opinion, we conclude that Noyakuk's petition failed to set forth a prima facie case — i.e., failed to state a claim upon which relief might be granted. We therefore affirm the superior court's dismissal of Noyakuk's petition.
Underlying facts
Noyakuk was convicted of first-degree murder for shooting and killing his girlfriend. He appealed his conviction, arguing that the superior court should have suppressed various statements he made to the authorities following the shooting, on the ground that the police violated his Miranda rights. This Court rejected Noyakuk's Miranda claim and affirmed his conviction: Noyakuk v. State, 127 P.3d 856 (Alaska App. 2006).
After this Court issued our decision, Noyakuk's attorney filed a petition for hearing, asking the Alaska Supreme Court to review our decision, but the supreme court denied Noyakuk's petition in early May 2006. See Supreme Court File No. S-12221.
When Noyakuk received a copy of the supreme court's order denying his petition for hearing, he contacted his attorney, Gregory Parvin, to ask what the supreme court's order meant. According to the affidavit that Noyakuk submitted in support of his petition for post-conviction relief, Parvin told him that "there was nothing else to do", and that "[Noyakuk's] appeals were finished."
Parvin's affidavit gave a similar account of this conversation. According to Parvin, "[he] worked very hard on the suppression issues [presented on appeal]", and he "believed [those] suppression [arguments] to be highly meritorious". Parvin stated that he was "devastated" and "discouraged" when this Court rejected those suppression arguments, and he promptly filed a petition for hearing in the supreme court. After the supreme court issued its order denying the petition for hearing, Parvin spoke with Noyakuk. Although Parvin stated that he no longer had a detailed recollection of what was said during this conversation, "he probably did tell [Noyakuk] that his appeals were over, and that we . . . had nowhere else to seek review of the suppression issues".
Approximately one year later, in July 2007, a fellow inmate informed Noyakuk that he could seek federal habeas corpus relief. Noyakuk contacted the Federal Public Defender, and in early August 2007 he filed a federal petition for writ of habeas corpus. (The present record does not provide any indication of the progress or the result of that federal litigation.)
Later that month (August 2007), Noyakuk initiated the current litigation by filing a petition for post-conviction relief in the superior court. In that petition, Noyakuk claimed that Parvin gave him ineffective assistance of counsel. Specifically, Noyakuk asserted that Parvin represented him incompetently because, after this Court and the Alaska Supreme Court rejected his Miranda claims, Parvin told Noyakuk that his appeals were over — thus failing to alert Noyakuk to the possibility that he could seek federal habeas corpus relief or that he could seek post-conviction relief under Alaska law.
Noyakuk asserted that he had been prejudiced by Parvin's alleged incompetence because "[his] rights to remain silent and Miranda rights were violated by the [Alaska State Troopers]", and thus "[his] conviction [was] based on unconstitutional evidence".
The superior court ruled that Noyakuk's petition for post-conviction relief was time-barred. The pertinent statute, AS 12.72.020(a)(3)(A), states that when a defendant pursues a direct appeal of their conviction (and loses), any petition for post-conviction relief must be filed within one year after the decision of the appellate court becomes final. In Noyakuk's case, the decision of this Court became final on May 10, 2006 — the day after the Alaska Supreme Court denied Noyakuk's petition for hearing. See Alaska Appellate Rules 507(b) and 512(a)(2)[b]. And, as explained above, Noyakuk did not file his petition for post-conviction relief until August 2007.
Noyakuk now appeals the superior court's decision. He argues that the superior court should have relaxed the filing deadline because Parvin failed to tell Noyakuk about the possibility of pursuing federal habeas corpus relief or pursuing post-conviction relief under Alaska law.
The superior court correctly ruled that Noyakuk's petition for post-conviction relief was untimely: even if the superior court had the equitable power to relax the statute of limitations, Noyakuk's petition failed to establish a prima facie case for relaxing the filing deadline
Noyakuk claims that, even though he filed his petition after the one-year deadline specified in AS 12.72.020(a)(3)(A) had expired, his petition should nevertheless be deemed timely because he received incompetent advice from his attorney. In particular, Noyakuk argues that his attorney incompetently told him that there were no further procedural avenues for pursuing his Miranda claims, when in fact Noyakuk might have filed a federal petition for writ of habeas corpus or might have filed a petition for post-conviction relief under AS 12.72.
The possibility that Noyakuk might have filed a federal petition for writ of habeas corpus was irrelevant to the question of whether Noyakuk should be allowed to file a late petition for post-conviction relief under AS 12.72 — because the superior court could not grant any relief to Noyakuk on this issue. The superior court had no authority to order a federal district court to entertain (much less grant) Noyakuk's petition for writ of habeas corpus.
This leaves Noyakuk's assertion that he should be allowed to file an untimely petition for post-conviction relief under AS 12.72. Noyakuk argues that when he asked his attorney if there was anything else he could do to pursue further litigation of his Miranda claims (after those claims were rejected by this Court, and after the Alaska Supreme Court declined to review our decision), his attorney incompetently failed to inform him of his right to pursue post-conviction relief under AS 12.72.
But to the extent Noyakuk's attorney implicitly told him that post-conviction relief was not available as a vehicle to pursue his Miranda claims, the attorney's advice was not incompetent. Instead, it was accurate.
AS 12.72.020(a)(1) declares that a defendant can not seek post-conviction relief based on a claim regarding the admission or exclusion of evidence at the defendant's trial. In addition, AS 12.72.020(a)(2) declares that a defendant can not seek post-conviction relief based on a claim that was raised (or could have been raised) in the defendant's direct appeal of their conviction. Noyakuk's Miranda claims fall under both of these statutory prohibitions.
In other words, Noyakuk's attorney did not act incompetently when he failed to tell Noyakuk that his Miranda claims could be raised again in a petition for post-conviction relief. By statute, these claims could not be raised. Therefore, Noyakuk failed to present even a prima facie case that his attorney's advice was incompetent.
Because Noyakuk's sole argument for relaxing the post-conviction relief filing deadline was the alleged incompetence of his attorney's advice on this issue, and because Noyakuk's attorney's advice was not incompetent, then even assuming that the superior court had the equitable power to relax the filing deadline, Noyakuk failed to advance any good reason for the superior court to exercise this power.
We acknowledge that when the superior court dismissed Noyakuk's petition for post-conviction relief, the superior court based its decision purely on the untimeliness of Noyakuk's petition. The superior court did not analyze Noyakuk's petition in the manner we have done here. But this Court is authorized to affirm the superior court's dismissal of the petition based on any rationale undisputedly revealed by the record — even though the superior court did not consider that rationale.
See, e.g., Spindle v. Sisters of Providence in Washington, 61 P.3d 431, 436 (Alaska 2002) ("We are not bound by the trial court's articulated reasoning and can affirm a grant of summary judgment on alternative grounds, considering any matter appearing in the record, even if not considered by the trial court."); Torrey v. Hamilton, 872 P.2d 186, 188 (Alaska 1994); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992); Russell v. Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App. 1981).
For the reasons we have explained, we conclude that Noyakuk's petition fails to state a claim on which relief might be granted, nor any ground on which the filing deadline might be equitably relaxed — even if every factual assertion contained in Noyakuk's petition were ultimately proved. Accordingly, the judgement of the superior court is AFFIRMED.
After the superior court appointed counsel for Ben Noyakuk, his attorney filed a motion asking the court to determine that Noyakuk's pro se application was timely. In the motion, the attorney also asked for an additional sixty days to file an amended application. This procedure is arguably required by AS 12.72.020(d), which states the following: "The court may not consider a substantive claim in [a post-conviction] application until the court has first determined that . . . the application is timely." The superior court addressed only the timeliness issue when it dismissed Noyakuk's application. In my opinion, it is now improper for us to review the adequacy of the claims in Noyakuk's application because his attorney has not had an opportunity to file a proper application.
I would affirm the superior court's decision on the issue that the court decided — that Noyakuk's application was untimely. In this appeal, Noyakuk argues that the superior court should have extended the statute of limitations on his post-conviction claims based on equitable tolling. But Noyakuk did not raise this issue in the superior court, so now he must show plain error. To constitute plain error, the error must be so obvious that any competent judge would have recognized it.
Cleveland v. State, 241 P.3d 504, 507 (Alaska App. 2010).
Id.
Noyakuk argues that the statute of limitations should be extended by the type of equitable tolling that applies when "extraordinary circumstances" prevent a diligent applicant from filing a timely post-conviction application. This theory of equitable tolling has never previously been accepted by the Alaska courts. And the circumstances described in Noyakuk's affidavits are not the types of extraordinary circumstances that qualify for equitable tolling. In my opinion, the superior court's failure to recognize and apply this theory of equitable tolling was not plain error.
See, e.g., Holland v. Florida, 130 S. Ct. 2549, 2562-63 (2010).
See Kaiser v. Umialik Ins., 108 P.3d 876, 882 (Alaska 2005).
See generally 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).