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Kolody v. State (12/21/2007) ap-2134

Kolody v. State (12/21/2007) ap-2134

                             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


JEFFREY KOLODY, )
) Court of Appeals No. A-9332
Appellant, ) Trial Court No. 3PA-04-1675 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2134 December 21, 2007
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:  David E. George, Anchorage, for
          the  Appellant.   Nancy R.  Simel,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Jeffrey  Kolody  was  charged with  several  counts  of
controlled  substance  misconduct.  On December  9,  2004,  while
these  charges were pending, Kolody filed a petition for writ  of
habeas  corpus.  In this petition, Kolody contended that  he  was
entitled  to  immediate release, and to dismissal of the  charges
against  him, because his court-appointed attorney had  neglected
his case and had failed to give him competent representation.
          Superior   Court   Judge  Eric  Smith  denied   Kolodys
petition.   Judge  Smith  noted  that  Kolody  could  pursue  his
complaints about his attorney by filing a motion or by  otherwise
seeking  relief  in  his underlying (and still pending)  criminal
case.   Accordingly, Judge Smith concluded that  Kolody  was  not
entitled  to  raise these complaints in a petition  for  writ  of
habeas corpus  because Alaska Civil Rule 86(n) declares that  the
writ of habeas corpus can not be used as a substitute for ... any
remedy incident to the proceedings in the trial court.
          Kolody (who is now represented by a different attorney)
appeals this ruling.
          In  his  habeas corpus petition to the superior  court,
and  again  in his brief to this Court, Kolody asserts  that  his
trial  attorneys incompetence and lack of zeal has led to Kolodys
loss  of  several constitutional and statutory rights.   But  the
underlying  merit of these claims has never been  litigated,  and
Judge Smith has issued no ruling on any of these claims.
          The  sole  issue  presented in this appeal  is  whether
Judge  Smith was correct when, pursuant to Civil Rule  86(n),  he
dismissed  Kolodys habeas petition on the ground that Kolody  was
entitled  to  raise these complaints about his  attorney  in  the
normal course of the underlying criminal proceedings.
          (While  this appeal was pending, Kolody and  the  State
agreed  to resolve the underlying criminal case by having  Kolody
enter  a  plea  of  no  contest  to one  count  of  second-degree
controlled   substance  misconduct.   Following  an  unsuccessful
attempt to withdraw that plea, Kolody was convicted and sentenced
to  a  presumptive term of five years imprisonment.   Kolody  has
appealed  that judgement and sentence, see Kolody v. State,  File
No. A-9646, and his appeal is currently in the briefing stage.)
          We  conclude  that Judge Smith was correct  to  dismiss
Kolodys  petition for writ of habeas corpus.  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.
          We note that this rule of Alaska law is the same as the
corresponding rule under federal law.  The United States  Supreme
Court has declared that the writ of habeas corpus is not intended
to  serve the office of a writ of error even after [the]  verdict
[in a criminal trial]; and, for still stronger reasons, it is not
available  to  a  defendant  before trial,  except  in  rare  and
exceptional cases.1  Thus, in federal court, a criminal defendant
must  pursue  other  available remedies   which  generally  means
following  the  orderly course of a trial and an  appeal   before
resorting to the writ of habeas corpus.2
          Here,   Kolody   wanted  to  challenge  his   attorneys
performance  in  a pending criminal case.  He could  have  sought
relief  directly from the trial court in that case.  Accordingly,
he was not entitled to file a petition for writ of habeas corpus.
          The judgement of the superior court is AFFIRMED.

_______________________________
  1  Johnson  v.  Hoy, 227 U.S. 245, 247; 33 S.Ct. 240,  241;  57
L.Ed. 497 (1913).

  2 Johnson, 227 U.S. at 247, 33 S.Ct. at 241.

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