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affirming superior court's decision denying Harmon's application for post-conviction relief
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Court of Appeals No. A-10828 Trial Court No. 4FA-10-1375 CR No. 5839
05-02-2012
STEPHEN HARMON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Stephen Harmon, pro se, Appellant. Marilyn J. Kamm, Assistant Attorney General, Criminal Division, Juneau, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Stephen Harmon, pro se, Appellant. Marilyn J. Kamm, Assistant Attorney General, Criminal Division, Juneau, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
MANNHEIMER, Judge, concurring.
Stephen Harmon challenges the superior court's decision to treat his petition for writ of habeas corpus as an application for post-conviction relief and to dismiss the application. In the application, Harmon claimed he was entitled to release from the remainder of his sentence because the State of Alaska waived jurisdiction over him when it sent him to a private prison in Arizona.
Harmon claims that the superior court should have allowed him to pursue his claim as a petition for writ of habeas corpus. He also argues that the judge engaged in improper ex parte contact before he issued the order treating Harmon's claim as an application for post-conviction relief. In addition, he argues that the court erred by dismissing his application on the merits and as time-barred. And he argues that the court should have given him notice before dismissing the application, and should have appointed an attorney to assist him. For the reasons explained below, we conclude that none of these claims has merit. We therefore affirm the superior court's decisions.
Background
In 1993, Harmon was convicted of first-degree murder and first-degree sexual assault. The sentencing judge imposed a composite term of 129 years with a parole eligibility restriction of 99 years. This court affirmed Harmon's convictions and sentence. Harmon is now incarcerated at Spring Creek Correctional Center in Seward, but he was housed at a private prison in Arizona operated under contract with the Alaska Department of Corrections from January 1995 until December 2009.
Harmon v. State, 908 P.2d 434, 445 (Alaska App. 1995).
Harmon filed his first application for post-conviction relief in 1997. The superior court dismissed that application, and this court affirmed. Harmon argued in his appeal of that dismissal that he should be released from prison because the State of Alaska lost jurisdiction over him when it transferred him to Arizona. This court declined to reach that issue because Harmon had not litigated it in the trial court.
Harmon v. State, Mem. Op. & J. No. 4349, 2001 WL 100062, at *1, *3 (Alaska App. Feb. 7, 2001).
Id. at *2.
Id.
In January 2010, shortly after his transfer back to Alaska, Harmon filed a petition for writ of habeas corpus in superior court, arguing that he was entitled to immediate release because the State of Alaska lost jurisdiction over him when it transferred him to a private prison in Arizona. Superior Court Judge Michael A. MacDonald converted the habeas petition into an application for post-conviction relief pursuant to Civil Rule 86(m).
On July 19, 2010, in the absence of any motion to dismiss filed by the State, Judge MacDonald dismissed the application for failure to state a prima facie case. The judge concluded that, under Hertz v. State (Hertz I), Alaska retained jurisdiction over Alaska prisoners transferred to privately operated out-of-state prisons.
22 P.3d 895 (Alaska App. 2001).
Harmon then filed a pleading that the superior court treated as a motion for reconsideration. Ultimately, the superior court granted that motion and set aside its July 19 dismissal, concluding it had committed procedural error by failing to give Harmon proper notice of its intent to dismiss the application. The court then formally gave notice of its intent to dismiss for the reasons set forth in the July 19 order, and gave Harmon thirty days to file a response to the proposed dismissal or to amend his application to cure the deficiency.
The State then moved to dismiss the application on the ground that it was time-barred. The State pointed out that Harmon had not challenged the administrative decision to send him to Arizona until years after the statute of limitations for raising that claim had expired. The court granted the State's motion to dismiss on the ground that the application was time-barred, but it also reaffirmed its earlier decision denying the application for failure to state a viable claim.
After Harmon filed this appeal the State conceded that the superior court had erred by dismissing Harmon's application on the ground that it was time-barred because Harmon had no attorney to help him litigate this claim. In response, we remanded the case to the superior court, directing the court to appoint an attorney to assist Harmon in litigating (1) whether his petition for writ of habeas corpus should have been treated as a petition for post-conviction relief; (2) whether the State's motion to dismiss on timeliness grounds was untimely; (3) if the State's motion to dismiss was properly filed, whether Harmon's application was timely; and (4) whether the State of Alaska lost jurisdiction over Harmon when it transferred him to a private prison in Arizona.
The superior court held a hearing at which Harmon waived his right to counsel and his right to relitigate these issues. We then allowed Harmon to file a supplemental brief, and resumed consideration of Harmon's appeal.
Discussion
The superior court properly converted Harmon's petition for writ of habeas corpus into an application for post-conviction relief.
Harmon argues that the superior court erred in treating his petition for writ of habeas corpus as an application for post-conviction relief.
Civil Rule 86(m) requires trial courts to treat any habeas corpus action that could be brought under Criminal Rule 35.1 as an application for post-conviction relief. The procedures for pursuing post-conviction relief under Rule 35.1 were enacted to supersede most habeas actions in criminal cases by providing "a standard procedure for accomplishing the objectives of all of the constitutional, statutory or common law writs."
Alaska R. Civ. P. 86(m) provides:
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.
Harmon argued in his habeas petition that he was being illegally held by Alaska authorities and that he was entitled to immediate release. Under Criminal Rule 35.1(a)(5), an applicant who has been convicted of a crime is entitled to bring a post-conviction relief action claiming he is "unlawfully held in custody or other restraint." Civil Rule 86(m) therefore required the superior court to treat Harmon's petition as an application for post-conviction relief. To the extent Harmon is arguing that Judge MacDonald converted his habeas petition into an application for post-conviction relief as a procedural ruse to enable the court to deny the application as time-barred, that claim is without merit. In criminal matters, a defendant has no right to seek habeas corpus relief based on a claim that is covered by the post-conviction relief statute.
Hertz v. State (Hertz II), 8 P.3d 1144, 1147-49 (Alaska App. 2000).
Harmon also argues that Civil Rule 86(m) should not be binding in his case because his post-conviction relief application is barred by the statute of limitations. But we already rejected this claim in Hertz v. State (Hertz II), where we observed that allowing a defendant to pursue habeas litigation whenever a post-conviction claim is procedurally barred under AS 12.72.020(a) would subvert the legislature's intent.
Id. at 1147.
Harmon has not shown that the judge engaged in improper ex parte contact.
Harmon next argues that Judge MacDonald committed judicial misconduct by relying on an ex parte contact with a "mystery advisor" in denying his motion for reconsideration of the court's order converting his habeas petition into an application for post-conviction relief. Harmon's argument is based on the portion of the March 23, 2010, order that states, "Plaintiff having filed a Motion for Reconsideration ... and the court being otherwise duly advised, IT IS HEREBY ORDERED[.]" Harmon, as a non-lawyer, has apparently misunderstood this italicized language to mean that Judge MacDonald denied the motion for reconsideration based on some impermissible ex parte contact. But this type of language is commonly used to indicate that the court considered the motion and any responsive pleadings before issuing its ruling. The language does not imply or establish that the judge relied on ex parte contact. In any event, we have reviewed the record independently, and we agree that the court properly converted Harmon's habeas petition into an application for post-conviction relief.
Emphasis added.
The court did not err in denying Harmon's application on the merits.
Harmon argues that the superior court erred by relying on Hertz I to reject his claim that the State of Alaska lost its authority to further imprison him once it transferred him to a private prison in Arizona.
In Hertz I, the defendant argued that the Alaska Department of Corrections forfeited its jurisdiction over him by transferring him to the Central Arizona Detention Center without providing for an agency or jurisdictional relationship with the private prison. In making this argument, Hertz relied in particular on the legislature's repeal of a statutory provision, former AS 33.30.060(b), that had expressly provided that Alaska retained jurisdiction over inmates housed out of state. Hertz also relied on the fact that the contract with the Arizona prison provided that the prison was an independent contractor, rather than an agent of the State of Alaska.
Id. at 899-900.
Id. at 900.
In rejecting Hertz's claim, we observed that the statutory provision providing that Alaska retained jurisdiction over inmates housed out of state had been eliminated at a time when the state statutes did not permit the Department of Corrections to transfer inmates to private prisons out of state. After reviewing the legislative history, we concluded that the legislature clearly intended to retain jurisdiction over inmates serving Alaska sentences in out-of-state prisons, despite the repeal of this provision. We also concluded that the contract between the Department of Corrections and the Arizona prison reflected this understanding, because in the contract the Department of Corrections retained authority over all significant decisions involving Alaska inmates.
Id. at 899.
Id. at 900-01.
Harmon argues that Harvey v. Antrim, not Hertz I, is the controlling authority in his case. In Harvey, we held that Alaska courts retain jurisdiction to entertain the habeas corpus litigation of Alaska prisoners housed outside Alaska if the prisoner's immediate custodian is "an agent of the Alaska Department of Corrections ... [and] Alaska correctional officials hav[e] the authority to order the prisoner returned to Alaska." Harmon argues that an exhibit he filed in superior court — a two-page document he claims is an excerpt from the contract between the Department of Corrections and the Arizona prison that housed him — shows that there was no such agency relationship.
160 P.3d 673 (Alaska App. 2007).
Id. at 678.
But the contract provision Harmon points to is simply an "independent contractor" provision providing, presumably for liability purposes, that the prison and its employees are not officers or employees or agents of the state in the performance of the contract. This provision is not determinative of whether Harmon's custodian at the Arizona prison operated as an agent of the Department of Corrections. An independent contractor clause may appear in a prison contract even though the Department of Corrections retains authority over all significant decisions involving Alaska inmates housed at the prison, including the authority to order them to return to Alaska. Because Harvey is not inconsistent with Hertz I, and because the case does not aid Harmon's claim that the state lost jurisdiction over him by housing him in the Arizona prison, the superior court did not err by relying on Hertz I instead of Harvey.
Cf. Powell v. Tanner, 59 P.3d 246, 252 n.26 (Alaska 2002) (distinguishing agency from an employer-employee relationship); Tesoro Petroleum Corp. v. State, 42 P.3d 531, 537 (Alaska 2002) (looking to the reality of the parties' relationship, rather than to the parties' contractual statement of the relationship).
See Hertz I, 22 P.3d at 900-01.
Harmon also cites a number of statutes governing the operation of Arizona prisons, including Ariz. Rev. Stat. Ann. § 41-1609.01.(P)(1)-(4); Ariz. Rev. Stat. Ann. § 41-1683; and Ariz. Rev. Stat. Ann. § 41-1684. We have reviewed these statutes and conclude that they do not support Harmon's claim that the State of Alaska lost jurisdiction over him while he was housed in Arizona.
Harmon argues that for a period of two years and three months while he was housed in Arizona — from January 21, 1995, to April 22, 1997 — Arizona did not authorize any private prisons to operate in Arizona. He also claims that the Arizona prison where he was housed was required to have a business license but did not. He urges this court to obtain a sealed F.B.I. report filed in Cleary v. Smith, to verify that the Arizona prison was operating illegally. The gist of Harmon's claims appears to be that the Arizona prison was operating illegally while he was housed there. But even assuming, for the purpose of argument, that this were true, Harmon has not offered any authority establishing that this circumstance would entitle him to release from serving the remainder of his sentence in Alaska. Furthermore, Harmon has not explained why he failed to raise these claims in his 1997 application for post-conviction relief.
Final Settlement Agreement and Order, Cleary v. Smith, No. 3AN-81-5274 CI, (Alaska Super. Ct., Sept. 21, 1990).
See AS 12.72.020(a)(6).
Harmon also cites Shields v. Beto, a Fifth Circuit case holding that Texas violated a defendant's due process rights by imposing the balance of his term to serve after more than twenty-eight years of inaction in enforcing his sentence. The Fifth Circuit held that the state's lengthy inaction was equivalent to a pardon or commutation of the sentence and a waiver of jurisdiction. Shields is inapposite. Harmon has been serving his sentence continuously since it was imposed, and the fact that he has served some of it out of state does not raise the type of due process concern at issue in Shields. As this court noted in rejecting the same claim in Hertz I, a later Fifth Circuit case interpreting Shields held that a state waives jurisdiction by transferring an inmate to another jurisdiction before the expiration of the inmate's sentence only if the state's action is "so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with 'fundamental principles of liberty and justice' to require a legal sentence to be served in the aftermath of such action or inaction."
370 F.2d 1003 (5th Cir. 1967).
Id. at 1005-06.
Hertz I, 22 P.3d at 901 (quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973)). Harmon cites other cases to advance his due process argument, but none of them supports his claim. See, e.g., Smith v. Idaho, 392 F.3d 350, 355 & n.3 (9th Cir. 2004); United States ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140, 1146 (9th Cir. 2004); Alfrey v. United States, 276 F.3d 557, 566 (9th Cir. 2002); Nunley v. City of Los Angeles, 52 F.3d 792, 796, 798 (9th Cir. 1995); Green v. Christiansen, 732 F.2d 1397 (9th Cir. 1984); Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003).
Harmon also appears to reiterate the claim raised in Hertz I that the State is estopped from asserting that it retains jurisdiction over Alaska inmates housed in Arizona because it took a contrary position in a September 1995 hearing related to the Department of Correction's compliance with the Cleary Final Settlement Agreement. In Hertz I, we found that the discussion at that hearing, taken in context, indicated that the parties were not disputing whether the State had jurisdiction over Alaska inmates at the Arizona prison, and that the trial court reasonably found that Hertz's estoppel argument had no factual basis. Harmon has not presented evidence or argument warranting a different conclusion in this case. We conclude that the superior court did not err in dismissing Harmon's application on the merits.
Final Settlement Agreement and Order, Cleary v. Smith, No. 3AN-81-5274 CI (Alaska Super. Ct., Sept. 21, 1990).
Harmon's application is time-barred.
Harmon also challenges Judge MacDonald's decision to dismiss his application because it was filed outside the statute of limitations.
Under AS 12.72.020(a)(4), a post-conviction relief application challenging an administrative decision of the Department of Corrections must be brought within one year of that administrative decision. Harmon's claim is that the state lost jurisdiction over him when it transferred him to Arizona in 1995. His habeas petition was not filed until 2010. The application was therefore filed years outside the statute of limitations. Moreover, AS 12.72.020(a)(6) prohibits successive applications for post-conviction relief, and Harmon could have raised this claim in his first application, filed in 1997.
See AS 12.72.020(a)(6).
Harmon advances four reasons why we should nevertheless reverse the superior court's decision to dismiss his application as time-barred: (1) because the State's motion to dismiss the application on timeliness grounds was not timely; (2) because the administrative action Harmon is challenging is his illegal return to Alaska on December 19, 2009, and he filed his petition for writ of habeas corpus one year later, on January 19, 2010; (3) because prior to his return to Alaska, he could not pursue his claims because Alaska courts did not have personal jurisdiction over him; and (4) because his claim for release is based on Harvey, which was not decided until 2007.
Under Civil Rule 12(b), the State was required to assert any statute of limitations defense in its response to Harmon's application for post-conviction relief. Having initially failed to file an opposition to the application, the State arguably waived this defense. But, as we have explained, while Harmon's appeal was pending in this court, we remanded the case to the superior court and gave Harmon the opportunity to litigate his claim that the State's motion to dismiss his petition on timeliness grounds was untimely. Harmon was also given the opportunity to litigate the merits of the State's claim that his application was barred by the statute of limitations. Harmon declined the opportunity to litigate these issues. Consequently, he cannot now claim prejudice from the State's late assertion of the statute of limitations defense.
See Barrett v. Byrnes, 556 P.2d 1254 (Alaska 1977).
Harmon's second claim — that the administrative action he is challenging is his illegal return to Alaska on December 19, 2009 — also fails. On the first page of his habeas complaint Harmon stated that the State of Alaska "surrendered and ended my Alaska sentence [on] ... 'Jan. 21, 1995'" when he was transferred to Arizona. Harmon raised this same claim in his application for post-conviction relief.
Harmon's third argument — that prior to his return to Alaska, he could not pursue his legal claims because Alaska courts did not have personal jurisdiction over him — also fails. Harmon has not shown that Alaska courts lost personal jurisdiction over him when he was transferred to a private prison in Arizona. In fact, he litigated his first application for post-conviction relief while he was housed in Arizona.
Harmon's fourth argument is that he could not have raised his claim before Harvey was decided in 2007. This claim has several flaws. To bring an application for post-conviction relief based on a "significant change of law" under Criminal Rule 35.1(a)(7), an applicant must show that the change in law "applied in the process leading to the applicant's conviction or sentence." Harmon has challenged an administrative decision of the Department of Corrections that was made after he was convicted and sentenced. Moreover, even if Harmon were entitled to seek post-conviction relief under Rule 35.1(a)(7), and even if Harvey applied retroactively to the Department of Corrections's decision to transfer him to Arizona in 1995, Harmon would not be entitled to relief. As we have already explained, Harvey does not support Harmon's claim that the state waived jurisdiction over him when it sent him to Arizona or that he is entitled to release from prison as a result. We conclude that the superior court did not err in dismissing Harmon's application as time-barred.
Emphasis added.
Harmon's other claims are moot.
Harmon argues that the superior court erred by not appointing an attorney to represent him in his application for post-conviction relief. He also argues that the court erred by dismissing his application without first giving him notice of its intent to dismiss.
See Serradell v. State, 129 P.3d 461, 463-64 (Alaska App. 2006); Wood v. Endell, 702 P.2d 248, 249 (Alaska App. 1985); Hampton v. Huston, 653 P.2d 1058, 1060 (Alaska App. 1982).
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Harmon made these arguments in his opening brief, which he filed before the superior court vacated its original order dismissing Harmon's application. The superior court subsequently provided Harmon with notice of its intent to dismiss the application for the reasons stated in its order, and gave Harmon thirty days to respond or supplement his pleadings. Because the superior court cured the procedural error Harmon complains of, his claim is now moot.
In addition, as we already explained, while Harmon's appeal was pending we ordered the superior court to appoint an attorney to represent Harmon, and gave him an opportunity to litigate his claims with the assistance of that attorney. The superior court then held a hearing at which Harmon waived his right to counsel and to litigate his claims. Harmon's claim that he was denied his right to an attorney is therefore also moot.
Conclusion
We AFFIRM the superior court's decision denying Harmon's application for post-conviction relief. MANNHEIMER, Judge, concurring.
I write separately to urge judges to avoid the legal jargon that gave rise to one of Harmon's claims on appeal.
As the lead opinion explains, Harmon initially sought relief by filing a petition for writ of habeas corpus. Because Harmon's claim arose from criminal litigation and because the relief he sought was available under the post-conviction relief statute, Alaska Civil Rule 86(m) directed the superior court to treat Harmon's petition as a petition for post-conviction relief. The superior court issued a ruling to that effect, and Harmon then filed a motion for reconsideration. When the superior court denied Harmon's request for reconsideration, the court used the following language:
[The] Plaintiff having filed a motion for reconsideration of the court's [earlier] order converting [Harmon's] petition for [writ of] habeas corpus to [a] petition for post conviction relief, and the court being otherwise duly advised,
It is hereby ordered that the motion for reconsideration is denied.
Because Harmon is not a lawyer, he is apparently unacquainted with the kinds of stock legal phrases that judges and lawyers unthinkingly insert into their writing. Harmon interpreted the phrase "and the court being otherwise duly advised" as an admission by the judge that some unknown person had given the judge advice about how to rule on Harmon's motion.
If one uses a legal database — or, indeed, if one uses a general-purpose search engine such as Google — to look for the phrase "otherwise duly advised", one will find hundreds of references to trial court decisions where judges have employed this phrase or its sibling, "otherwise duly advised in the premises". Yet I doubt that one judge in a hundred thinks about what these words might mean. Judges have stopped paying attention to this phrase; it is simply a formula that one intones before announcing a decision.
In a judicial ruling, the phrase "otherwise duly advised" or "otherwise duly advised in the premises" means that the judge has not only read the parties' pleadings (and reviewed any evidence or oral arguments presented in connection with those pleadings), but has also given the matter careful consideration. In this context, the phrase "being advised" does not mean "having received advice"; rather, it means that the judge has completed his or her judicial deliberation on the matter. This same concept is embodied in a court's announcement that it is taking a case "under advisement" — meaning that the court intends to deliberate on the case before rendering a decision.
(This same underlying concept is found in the phrases "well-advised" and "ill-advised" when these phrases are used to describe an action or decision. Again, in this context, the word "advised" does not refer to the receipt of advice from other people, but rather to the thought or deliberation behind a person's action or decision. A "well-advised" decision is a decision that is wise or prudent. An "ill-advised" decision is the opposite; it is an ill-considered decision.)
But because Harmon is not a lawyer, Harmon quite sensibly concluded that when the judge announced (1) that he had read Harmon's motion and (2) that he had been "otherwise advised", the judge was saying that he had received someone else's advice on how to decide Harmon's motion.
When judges issue decisions, we are speaking not only to the lawyers involved in the case, but also to the people whose lives will be affected by our decisions. For this reason, we should avoid eccentric, "lawyerly" uses of language that may puzzle or mislead non-lawyers.
When judges wish to say that they have carefully considered a matter, judges should say just that — and should avoid saying that they have been "otherwise duly advised".