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Fisher v. State (12/20/2013) ap-2407

Fisher v. State (12/20/2013) ap-2407

                                                        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  



DANIEL PAUL FISHER,                                      )  

                                                         )          Court of Appeals No. A-11376 

                                      Appellant,         )          Trial Court No. 3AN-12-7930 CI  

                                                         )             t/w 3AN-10-14491 CR 

                  v.                                     )  

                                                         )               O  P  I  N  I  O  N  

STATE OF ALASKA,                                         )  

                                                         )  

                                      Appellee.          )  

                                                         )      No. 2407 - December 20, 2013  



                   Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                   Anchorage, Andrew Guidi, Judge.  



                   Appearances: Daniel Fisher, pro se, Wailuku, Hawaii.  Timothy   

                   W.  Terrell,  Assistant  Attorney  General,  Office  of  Special  

                   Prosecutions and Appeals, Anchorage, and Michael C. Geraghty,  

                   Attorney General, Juneau, for the Appellee.  



                                                                                         

                   Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                *  

                   District Court Judge.   



                   Judge ALLARD.  



                   Daniel Paul Fisher filed a petition for writ of habeas corpus, raising issues  



that could be pursued in an application for post-conviction relief under Alaska Rule of  

                                                                                              



          *   Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

Criminal Procedure 35.1.   The superior court reviewed Fisher's habeas petition and sua                   



sponte  dismissed  it,  instructing  Fisher  to  refile  his  claim  as  an  application  for  post- 



conviction relief.  Fisher filed a motion for reconsideration, pointing out that Alaska Rule  

                            



of  Civil  Procedure  86(m)  requires  the  court  to  treat  a  habeas  corpus  petition  as  an  

                              



application for post-conviction relief if the claims can be brought under Criminal Rule  

                                                                            

35.1.  Relying  on  Hertz  v.  State ,1  

                                                       the  superior  court  denied  Fisher's  motion  for  



reconsideration.  



                    Fisher appeals, arguing the superior court should have converted his petition  



to an application for post-conviction relief.  Because Civil Rule 86(m) requires the court  

                          



to treat Fisher's petition for habeas corpus as an application for post-conviction relief,  



we reverse the dismissal of Fisher's case.  



          Discussion  



                    Alaska Rule of Civil Procedure 86 governs petitions for writs of habeas  



corpus.  Subsection (m) states:  



                    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.  



As the superior court correctly noted, Fisher's petition for writ of habeas corpus involved  

                                                                                            



claims that could be raised in a post-conviction relief action under Criminal Rule 35.1.  

                                                



Pursuant to Civil Rule 86(m), the superior court therefore should have converted Fisher's  



petition into an application for post-conviction relief and allowed Fisher the opportunity  

                                                                      



          1    8 P.3d 1144 (Alaska App. 2000).  



                                                                                                                            2407  


----------------------- Page 3-----------------------

to amend his application to conform with the requirements of Criminal Rule 35.1.  Instead,  



the superior court dismissed Fisher's petition without prejudice and instructed him to file  

                   



an application for post-conviction relief.  



                    The State argues that there is no direct conflict between the superior court's  

                                                            



actions and Civil Rule 86(m) because the superior court's order was not intended to  

                                                                                                   



dismiss Fisher's case; it was only intended as a "pleading requirement" requiring Fisher  

                                                                    



to file a new application that conformed to the requirements of Criminal Rule 35.1(d).  



The State asserts that under the rules of civil procedure (which govern both habeas  



petitions  and  post-conviction  applications),  the  dismissal  of  a  complaint  does  not  



necessarily operate to dismiss the entire case.  The State therefore argues that the superior  



court acted within its discretion in dismissing Fisher's non-conforming pleading (the  



habeas  petition)  and  requiring  him  to  file  a  new  pleading  that  conformed  to  the  



requirements of Criminal Rule 35.1.  



                    Although the State may be correct about the superior court's intentions, it  

                                                                                                   



is clear that the court system as a whole treated the superior court's order as a dismissal  

                                                                                                    



of Fisher's entire case.  After the court issued its order, Fisher's case was closed by the  

                                                                                                



clerk's office.  To obtain any relief from the superior court, Fisher therefore needed to  

                                                                                 



do more than just file a pleading that conformed to the requirements of Criminal Rule 35.1.  



He also needed to file all of the paperwork required to initiate a new case with an entirely  

                                                                                                                  



new case number, including payment of a new filing fee (or the documentation required  

                                                            



for waiver of the fee).    



                    Moreover, when Fisher filed his motion for reconsideration pointing out that  



Civil Rule 86(m) required the superior court to convert his action rather than simply  

                                                                                           



dismiss it, the superior court did not respond with an explanation that the action had been  

                                                                                                                          



converted to a Criminal Rule 35.1 action and that the court was simply directing Fisher  

                                     



to file the necessary paperwork and amended pleadings.  Instead, the court ruled that under  



                                                                                                                            2407  


----------------------- Page 4-----------------------

                         2  

Hertz v. State          ,  the court had the discretion to dismiss the case and direct the defendant     



to file a new application for post-conviction relief.  The court apparently interpreted Hertz  



as giving the lower courts this authority, notwithstanding the mandatory nature of the  

      

directive in Civil Rule 86(m).3  

                                                       



                                      

                       But this is a misreading of the holding in Hertz .  In Hertz, the superior court  



                                                                                            

ruled that the defendant's petition for writ of habeas corpus involved claims that could  



be raised under Criminal Rule 35.1.  The superior court dismissed the petition and directed  



Hertz to re-file his claims as an application for post-conviction relief.  Hertz appealed,  

                                              



but not on the ground that the superior court should have treated his habeas petition as  



an application for post-conviction relief under Civil Rule 86(m).  Instead, Hertz argued  



that the superior court was wrong on the underlying question of whether his claims could  

                                                           



be brought through a habeas petition.  We affirmed, holding that Hertz's claims were  



cognizable under Criminal Rule 35.1 and therefore could only be brought as an application  

for  post-conviction  relief.4                                                                                                       

                                                   We  did  not  address  the  fact  that  the  superior  court  had  



                                      

dismissed the habeas petition rather than converting it as required under Civil Rule 86(m)  



because that issue was not before us.  



                                                                                                             

                       Hertz therefore does not stand for the proposition that the courts are within  



their discretion to dismiss rather than convert a habeas petition.  To the contrary, the courts  



are obligated to follow the clear and mandatory directive of Civil Rule 86(m), and when,  

                                                                                                                                     



as here, a defendant files a habeas petition that could be brought under Criminal Rule 35.1,  



            2     8 P.3d 1144 (Alaska App. 2000).  



            3    See also Harmon v. State, 2012 WL 1580776, at *2 (Alaska App. May 2, 2012)                                              



(unpublished);  Braswell   v.  State ,  2001  WL  456091,  at  *2  (Alaska  App.  May  2,  2001)  

(unpublished) (recognizing mandatory nature of directive to convert the action rather than  

to dismiss it).  



            4    Hertz , 8 P.3d at 1147.  



                                                                                                                                                  2407  


----------------------- Page 5-----------------------

the court is required to "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."  



         Conclusion  



                 We REVERSE the superior court's judgment and REMAND Fisher's case  

                                      



for further proceedings in accordance with this decision.   



                                                                                                           2407  

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