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McLaughlin v. State (8/14/2009) ap-2229

McLaughlin v. State (8/14/2009) ap-2229

     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

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) Court of Appeals No. A-10140
Appellant, ) Trial Court No. 3KN-07-00227 CI
v. ) O P I N I O N
Appellee. ) No. 2229 August 14, 2009
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kenai, Carl Bauman, Judge.

          Appearances:  Michael L. McLaughlin, pro  se,
          Kenai,  Appellant.   Kenneth  M.  Rosenstein,
          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 Bolger, Judges.

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.

          Michael  L. McLaughlin was convicted of felony  driving
under  the influence1 on May 5, 2004, after pleading no  contest.
Nearly  three years later, on March 21, 2007, McLaughlin filed  a
pro   se  application  for  post-conviction  relief.   McLaughlin
admitted that he had filed the application outside of the statute
          of limitations.2  But he relied on Alaska Civil Rule 60(b) to
argue  that  he  was  entitled  to litigate  the  merits  of  his
application  despite  the fact that it was untimely  because  the
judgment  was void.3  Superior Court Judge Carl Bauman  dismissed
McLaughlins  application  on the ground  that  it  was  untimely.
McLaughlin appeals.  We affirm.

          Why  we conclude that McLaughlin cannot use  Civil
          Rule   60(b)   to   circumvent  the   statute   of
          limitations    for   a   post-conviction    relief
          Alaska Statute 12.72.010 and Alaska Criminal Rule  35.1
define  the  grounds  and the procedures  (other  than  a  direct
appeal)  by which a person who is convicted of a criminal offense
can  attack  a conviction.  Alaska Statute 12.72.020  provides  a
statute   of  limitations  on  applications  for  post-conviction
relief.   McLaughlin admits that he filed his application  beyond
this  statute  of  limitations.  However,  McLaughlin  relies  on
portions  of  Civil  Rule  60(b) to argue  that  the  statute  of
limitations should not bar him from challenging his conviction as
          Civil  Rule 60(b) authorizes a court to relieve a party
from a final judgment, order or proceeding for listed reasons  in
a  civil case.5  Alaska Statute 12.72.010 and Criminal Rule  35.1
apply  when a person who has been convicted of a criminal offense
seeks  relief from that conviction.  Criminal Rule 35.1(b) states
that  post-conviction relief is intended to  provide  a  standard
procedure  for  accomplishing  the  objectives  of  all  of   the
constitutional,   statutory  or   common   law   writs.6    Thus,
AS  12.72.010  and  Criminal Rule 35.1 apply  to  the  collateral
review of McLaughlins criminal conviction  Civil Rule 60(b)  does
          It is true that Criminal Rule 35.1(g) provides that the
civil  rules (except Rule 26(a)(1)  (4)) apply in post-conviction
relief actions.  But this use of the rules of civil procedure  is
meant  merely to provide an orderly process for determining post-
conviction  claims.  The civil rules do not create  an  alternate
procedure  for  seeking  relief from a  criminal  judgment.   The
procedure  for  collateral  attack  of  a  criminal  judgment  is
explicitly set out in AS 12.72.010 and Criminal Rule 35.1(a).
          Alaska Statute 12.72.010 and Criminal Rule 35.1 broadly
define the grounds upon which a person may institute a proceeding
for  post-conviction relief.  And McLaughlin has not argued  that
his  claims  would have fallen outside the scope of that  statute
and  rule  if he had filed them on time.  He cannot now  use  the
civil rules to circumvent the statute of limitations stated in AS
12.72.020.   The legislature did not intend for a  person  to  be
able to evade this statute of limitations simply by claiming that
Civil Rule 60(b) applies.

          The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.

          The  question  presented in this appeal  is  whether  a
criminal  defendant  can  employ  Alaska  Civil  Rule  60(b)   to
circumvent  the limitation periods specified in AS 12.72.020  for
initiating  a petition for post-conviction relief.  I agree  with
my  colleagues that Civil Rule 60(b) can not be employed in  this
manner,  but  I  reach  that conclusion  for  slightly  different
          The  first underlying question in this case is  whether
Civil  Rule  60(b)  provides  a  method  for  attacking  criminal
judgements  as well as civil judgements.  We noted, but  did  not
resolve,  this  issue in Wilson v. State, Alaska App.  Memorandum
Opinion No. 2908 (May 4, 1994), 1994 WL 16196274 at *8-9.
          As  the majority opinion points out, it is dubious that
Civil   Rule  60(b)  offers  a  procedural  method  for  criminal
defendants  to collaterally attack their judgements.  Rather,  it
appears that the Alaska Legislature and the Alaska Supreme  Court
intended   AS 12.72 and Alaska Criminal Rule 35.1 to  codify  the
sole method for collaterally attacking a criminal judgement (that
is, attacking it other than by direct appeal).
          This  conclusion  is  bolstered by the  supreme  courts
enactment  of subsection (m) of Civil Rule 86, the rule codifying
habeas  corpus  procedure in Alaska.   Even though petitions  for
writ of habeas corpus are the method for collaterally attacking a
criminal conviction under federal law,1 Civil Rule 86(m) declares
that, under Alaska law, this use of the habeas corpus remedy  has
been superseded by the post-conviction relief procedure specified
in  Criminal Rule 35.1  and that, if a defendant files a petition
for  writ  of habeas corpus whose object is to attack a  criminal
conviction,  [t]he  court shall treat  such  a  complaint  as  an
application for post-conviction relief under Criminal Rule 35.1.
          Civil  Rule 86(m) codifies the decision reached earlier
by this Court in Wood v. Endell, 702 P.2d 248 (Alaska App. 1985),
a  case  in  which a prisoner filed a petition for habeas  corpus
attacking  his criminal conviction.  Based on the Alaska  Supreme
Courts  discussion in Donnelly v. State, 516 P.2d 396, 398  n.  2
(Alaska  1973),  we  concluded that  the  post-conviction  relief
procedures  codified  in  Criminal Rule  35.1  were  intended  to
supersede  the  habeas corpus remedy, and thus  a  habeas  corpus
petition  attacking  a  criminal conviction  should  normally  be
deemed a petition for post-conviction relief.  Wood, 702 P.2d  at
249 n. 1.
          Likewise, a criminal defendant who attempts to attack a
criminal  conviction by filing a motion under  Civil  Rule  60(b)
should be deemed to have initiated a petition for post-conviction
relief.   This  is, indeed, the result reached by  several  other
appellate courts who have confronted this issue.
          See  People v. Thomas, 195 P.3d 1162, 1165 (Colo.  App.
2008);   Hansen v. State, 71 P.3d 464, 467-68 (Idaho App.  2003);
Lottie  v.  State,  406 N.E.2d 632, 639 (Ind.  1980);2  State  v.
Schlee,  882  N.E.2d 431, 433-34 (Ohio 2008); Jackson  v.  State,
unpublished, 2007 WL 2231072 at *1 (Del. App. 2007).
          For  these  reasons,  I agree with my  colleagues  that
          Civil Rule 60(b) was not intended as a procedural vehicle for
criminal defendants seeking post-conviction relief.
          (In  contrast,  see State v. Superior  Court,  40  P.3d
1239,  1241  (Alaska  App.  2002), where  this  Court  held  that
judgements  ordering forfeiture of bail are  primarily  civil  in
nature,  even  though  they  almost always  arise  from  criminal
prosecutions,  and  thus  Civil Rule  60(b)  is  available  as  a
procedural  vehicle  to  seek relief from  a  judgement  of  bail
          Moreover,  I  conclude that, even if Civil  Rule  60(b)
were  available as a procedural method for attacking  a  criminal
judgement, McLaughlins Rule 60(b) motion was untimely.
          McLaughlin presented two underlying claims for  relief.
His  first  claim is that his criminal conviction should  be  set
aside   because  the  conviction  was  obtained  through  witness
tampering,   the  suborning  and/or  [proffering]   of   perjured
testimony, and criminal coercion.
          This  first  claim is covered by Civil  Rule  60(b)(3),
which provides for relief from judgements obtained by fraud ... ,
misrepresentation,  or  other misconduct  of  an  adverse  party.
However,  Rule  60(b) declares that any claim  for  relief  under
subsection (b)(3) must be made within a reasonable time,  and  in
any  event not more than one year after the date of notice of the
          McLaughlin missed this one-year deadline, but he relies
on  the  Alaska Supreme Courts decision in Mallonee v. Grow,  502
P.2d  432,  436-37 (Alaska 1972), where the court held that  this
one-year  deadline does not apply to cases where  the  challenged
judgement was obtained through fraud upon the court.
          (See Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976),
for  a  discussion of what constitutes a fraud upon the court  as
opposed to other varieties of fraud.)
          I assume (for purposes of argument) that when the State
obtains  a criminal conviction through witness tampering  and  by
knowingly   presenting  perjured  testimony,  this   conduct   is
sufficiently egregious to constitute a fraud upon the  court  for
purposes  of  the  Mallonee rule  and thus the one-year  deadline
would not apply to McLaughlins claim for relief.
          Nevertheless, Mallonee holds that all claims for relief
under Civil Rule 60(b)(3)  even claims involving a fraud upon the
court   are subject to Rule 60(b)s general requirement  that  the
claim  be made within a reasonable time.  Mallonee, 502  P.2d  at
437,   quoting  Rule  60(b).   The  question,  then,  is  whether
McLaughlins claim was made within a reasonable time for  purposes
of  Rule  60(b).   Because McLaughlins claim for relief  was  not
filed within the limitation period specified in AS 12.72.020  for
post-conviction relief actions, I conclude that it was  not  made
within a reasonable time for purposes of Civil Rule 60(b).
          The Alaska Supreme Court addressed an analogous problem
in  Alaska  Truck Transport, Inc. v. Berman Packing Company,  469
P.2d  697 (Alaska 1970).  The two parties to that litigation went
to  court  over  a  dispute about money, and the  superior  court
entered  judgement  in favor of Berman Packing.3   Eleven  months
later,  the losing party  Alaska Truck Transport  filed a  motion
          for relief under Civil Rule 60(b)(1), asserting that the superior
court  had overlooked governing principles of law, and that these
legal doctrines required the court to enter judgement in favor of
Alaska Truck Transport.4
          The  Alaska  Supreme  Court  noted  that  Alaska  Truck
Transports  motion for relief from judgement was made within  the
one-year   limitation  period  that  applies  to  motions   under
subsection (b)(1) of the rule.5  But the supreme court noted that
the  one-year limitation period was simply the outer  time  limit
for  bringing claims under subsection (b)(1)  and that any  claim
for  relief under any of the provisions of Civil Rule 60(b) still
had to filed within a reasonable time.6
          The  supreme  court then took up the issue  of  whether
Alaska  Truck  Transports claim for relief  was  filed  within  a
reasonable  time.   The  supreme court  held  that,  because  the
underlying  claim for relief was based on an assertion  that  the
lower  court failed to follow governing law (in other  words,  it
was  a  claim that might have been raised on direct appeal),  the
phrase  reasonable time should be construed to mean no more  than
30  days  i.e., the time for taking an appeal  so that Rule 60(b)
could  not  be used as a procedural method for circumventing  the
time limits on appeals.  Id. at 699-700.
          The  supreme court reiterated this principle in Rowland
v. Monsen, 135 P.3d 1036 (Alaska 2006):
               Rowlands  due  process  claims  [in  her
          Civil  Rule 60(b) motion] only reiterate  the
          argument she made [to the trial court] in her
          August   2000  motion  to  reconsider.    She
          therefore knew of these potential grounds for
          relief   at  the  time  the  [trial   courts]
          underlying    order   [was]   issued.     Her
          appropriate course would have been to  appeal
          the  merits  of the [trial courts]  order  at
          that  time.   As  Rule  60(b)  is  neither  a
          substitute  for an appeal nor  a  device  for
          obtaining an extension of time for filing  an
          appeal, Rowland waived her right to seek Rule
          60(b) relief on these claims.
          Rowland,  135  P.3d  at  1039-1040  (internal
          footnote omitted).
          McLaughlins   case   presents    an
analogous situation.  McLaughlin was aware of
the  factual bases of his claims  during  the
litigation  of his criminal case.   Thus,  he
could  have raised these claims in  a  timely
petition  for  post-conviction  relief.   The
legislature has established time  limits  for
bringing  post-conviction relief claims   the
time  limits codified in AS 12.72.020.  Thus,
even   if   Civil  Rule  60(b)  theoretically
remained   available  to  McLaughlin   as   a
procedural method for attacking his  criminal
          conviction, we would have to hold that, for
litigants in McLaughlins situation, the  time
limits  set  forth in AS 12.72.020 constitute
the  outer limits of the reasonable time  for
filing  a motion for relief under Civil  Rule
60(b)(3).  If we ruled otherwise, Civil  Rule
60(b)(3)  could  be used to circumvent  those
time limits  and, as the Alaska Supreme Court
indicated  in  Alaska  Truck  Transport   and
Rowland,  this  result  is  contrary  to  the
policy behind the rule.
          Accordingly,  even  if  Civil  Rule
60(b)  were potentially available as a  means
for    attacking   a   criminal    judgement,
McLaughlins  claim under Civil Rule  60(b)(3)
was untimely.
          This   leaves  McLaughlins   second
claim  for relief.  McLaughlins second  claim
is   that   the  superior  court   lost   its
jurisdiction  over  him because  his  defense
attorney  was  subject  to  intimidation  and
interference  on  the  part  of  the   State.
McLaughlin  asserts that the State obstructed
the  defense attorney to such an extent  that
he  (McLaughlin)  was  constructively  denied
counsel.   McLaughlin then argues  that  this
constructive  denial of counsel deprived  the
superior court of jurisdiction over him,  and
the  resulting judgement of conviction issued
by the superior court is therefore void.7
          As   McLaughlin  explained  in  his
superior court pleadings, this claim is based
on several underlying factual assertions.
          According to McLaughlin, the  State
was  tardy in making pre-trial disclosure  of
evidence pertinent to his breath test result.
After   the   State  finally  produced   this
evidence,  McLaughlin suspected that  it  was
not  authentic   leading  to  an  acrimonious
dispute  between McLaughlin and  his  defense
attorney   about  whether   to   attack   the
evidence.  (According to McLaughlin, he wrote
a scathing letter to his defense attorney and
his  attorneys  supervisor, threatening  them
with bar disciplinary proceedings.)
          In   addition,  McLaughlin  claimed
that   his   defense  attorney  was  becoming
uncommunicative   and   uncooperative    with
McLaughlin    because   the   attorney    was
overworked,  and because of pressure  exerted
by  the  prosecutor, and because the  defense
attorney was ... in over his head[,]  dealing
with a vastly more experienced [prosecutor].
          In  other words, McLaughlins  claim
that he was constructively denied counsel  is
based on assertions that his defense attorney
was   both   feckless  and   estranged   from
          McLaughlin wishes to categorize his
claim  as  a claim under Civil Rule 60(b)(4),
which   provides   for   relief   when    the
[challenged] judgment is void.  If this is  a
correct   characterization   of   McLaughlins
claim,  then he is not subject to Rule 60(b)s
normal   time   limits  for  seeking   relief
because   the   Alaska  Supreme   Court   has
repeatedly  held that motions to  overturn  a
void judgement under Civil Rule 60(b)(4)  are
not  subject to the same time constraints  as
other motions under Civil Rule 60(b).8
          However,         the         proper
characterization  of  McLaughlins  claim  for
relief   in  particular, whether  McLaughlins
claim for relief is properly classified under
Civil Rule 60(b)(4)  is a question of law  to
be decided by the courts.9
          For    purposes   of   Civil   Rule
60(b)(4),   a  judgement  is  void   if   the
defendant was not given proper notice of  the
action and [adequate] opportunity to be heard
...  or  where there was a failure to  comply
with [the] requirements ... necessary for the
valid   exercise  of  power  by  the   court.
Rowland,  135  P.3d at 1038.10  Specifically,
          [a] judgment rendered [by a court] without
jurisdiction is void and is ... vulnerable to
attack  pursuant  to a Rule 60(b)(4)  motion.
Balchen  v.  Balchen,  566  P.2d  1324,  1326
(Alaska  1977).   Accord, State  v.  Superior
Court,  40  P.3d 1239, 1242-43  (Alaska  App.
          However, as our supreme court  held
in  Kenai  Peninsula Borough v.  English  Bay
Village  Corp.,  781 P.2d  6  (Alaska  1989),
attacks  on  a  judgement  under  Civil  Rule
60(b)(4)  i.e., assertions that the judgement
is  void  on the basis that the court  lacked
authority  to enter the judgement  [must]  be
limited  to cases which involve an arrogation
of  authority which the court clearly  lacks.
781   P.2d  at  10.   As  the  supreme  court
explained,  unless  Civil  Rule  60(b)(4)  is
limited in this fashion, judgements would  be
considered  void   and, thus,  attackable  in
perpetuity   merely because serious  mistakes
have been made.  Id.
          Thus, a judgement is void only when
the  court  was not properly constituted,  or
had  no jurisdiction over a party or over the
subject matter of the litigation, or when the
party  attacking the judgement was not  given
proper   notice   of  the   action   and   an
opportunity  to be heard, or when  the  court
otherwise  failed to comply  with  the  basic
requirements  necessary for a valid  exercise
of  power by the court.11  Unless these types
of  circumstances are present, a  motion  for
relief  from a judgement can not (as a  legal
matter)  be  deemed a claim under Civil  Rule
60(b)(4)   even though the litigant may  have
labeled the claim as being brought under Rule
60(b)(4).  Burrell v. Burrell, 696 P.2d  157,
163 n. 11 (Alaska 1984).
          McLaughlin  claims  that   he   was
constructively denied counsel  because,  even
though  he  had  a  defense  attorney,   this
attorney  was  too  inexperienced,  and   too
intimidated by the prosecutor, to  adequately
represent   McLaughlin   and   protect    his
interests.  But in Brockway v. State, 37 P.3d
427  (Alaska App. 2001), this Court held that
such circumstances do not constitute the kind
of denial of counsel that deprives a court of

     [A] defendant [is] completely denied the
right  to  counsel  ...  [if]  the  defendant
ask[s] for counsel and [is] denied one or ...
     [if] the defendant proceed[s] without counsel
and  the trial judge did not obtain a knowing
waiver of the right to counsel.  ...  [A]s we
recognized in Flanigan v. State, [3 P.3d 372,
376 (Alaska App. 2000),] when a defendant  is
completely deprived of the right to  counsel,
it  is  equivalent to a lack of jurisdiction.
However,    this   exception   is    strictly
construed[:]  it does not apply to  instances
where  the  defendant  had  counsel  but  now
claims that his attorney was ineffective.

Brockway,  37 P.3d at 430 (internal footnotes
          Thus,  even if McLaughlins attorney
labored  under  the types of disability  that
McLaughlin   alleges,  McLaughlin   was   not
constructively denied counsel in a  way  that
would   deprive   the   superior   court   of
jurisdiction  over him  and,  therefore,  the
judgement  that  the  superior  court  issued
against  McLaughlin is not void for  purposes
of  Civil Rule 60(b)(4).  McLaughlin may wish
to  label  his claim for relief  as  a  claim
under Civil Rule 60(b)(4), but it is not.
          For  all of these reasons, I concur
in  the  result  reached  by  my  colleagues:
McLaughlin can not employ Civil Rule 60(b) as
an alternative procedural vehicle for seeking
post-conviction relief when his  request  for
relief is untimely under AS 12.72.020.

     1 AS 28.35.030(n).

     2 See AS 12.72.020(a)(3)(A).

     3  See  Burrell v. Burrell, 696 P.2d 157, 163  n.11  (Alaska
1984)  (noting that there is no time limit for attacking  a  void
judgment under Civil Rule 60(b)(4)).

     4 See Alaska R. Civ. P. 60(b) (On motion and upon such terms
as  are  just,  the court may relieve a party ...  from  a  final
judgment, order or proceeding for the following reasons:  ... (3)
fraud  ...  misrepresentation, or other misconduct of an  adverse
party; (4) the judgment is void.).

     5    See  Alaska R. Civ. P. 1 (The procedure in the superior
court  ...  shall be governed by these rules in  all  actions  or
proceedings of a civil nature.).

     6    See  also AS 12.72.010(6) (authorizing use of the post-
conviction  procedure  for  any  claim  that  the  conviction  or
sentence  is  otherwise  subject to collateral  attack  upon  any
ground  or  alleged error previously available under  the  common
law,  statutory law, or other writ, motion, petition, proceeding,
or remedy.).
1   See  28  U.S.C.   2254  (federal  criminal  convictions)  and
2255 (state criminal convictions).

     2  Overruled on other grounds in Ludy v. State,  784  N.E.2d
459 (Ind. 2003).

3 Alaska Truck Transport, 469 P.2d at 698.

4 Id.

     5 Id. at 699.

     6 Id. at 699.

7 See Johnson v. Zerbst, 304 U.S. 458, 467-68; 58 S.Ct.
1019, 1024-25; 82 L.Ed. 1461 (1938) (holding that  when
a defendant is denied the right to counsel, this denial
of  counsel  deprives  the court  of  jurisdiction  and
renders  void  any  ensuing  judgement  issued  by  the

8 See Standifer v. State, 3 P.3d 925, 928 (Alaska 2000);
Burrell  v.  Burrell, 696 P.2d 157, 163 n.  11  (Alaska
1984);  Kennecorp Mortgage & Equities,  Inc.  v.  First
National Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska

9 See Ray v. Ray, 115 P.3d 573, 576 (Alaska 2005); Jensen
v. Froissart, 982 P.2d 263, 266 (Alaska 1999).

10Quoting Burrell v. Burrell, 696 P.2d 157, 163  n.  11
(Alaska 1984).

11Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966).

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