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Selvester v. State (5/8/2015) ap-2452

Selvester v. State (5/8/2015) ap-2452

                                                       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 @ akcourts.us
 
 



                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JASON EARL SELVESTER,  

                                                                       Court of Appeals No. A-11746  

                                      Appellant,                      Trial Court No. 3AN-13-8347 CI  

                                                                    (Related case:  3AN-11-13426 CR)  

                            v.  



 STATE OF ALASKA,                                                               O  P  I  N  I  O  N 



                                      Appellee.                             No. 2452 - May 8, 2015  



                   Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                                                                                

                   Anchorage, Erin B. Marston, Judge.  



                   Appearances:      Jason   Earl   Selvester,   in   propria   persona,  

                   Anchorage, for the Appellant.   Donald Soderstrom, Assistant  

                                                               

                   Attorney  General,  Office  of  Criminal  Appeals,  Anchorage,  

                   and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  

                   Appellee.  



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

                   Judges.  



                   Judge MANNHEIMER.  



                   While Jason Earl Selvester was awaiting trial for sexual assault, he filed a                   



pro se  petition for writ of habeas corpus, raising a speedy trial claim that he could have         



raised in his criminal case.   Under Alaska law, a writ of habeas corpus can not be used   



as a "substitute for ... any remedy incident to the proceedings in the trial court."  Alaska  


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

Civil Rule 86(n).           More specifically, in Kolody v. State , we observed that "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." 1  



                    But instead of dismissing Selvester's habeas petition and directing Selvester  



to  pursue  his  speedy  trial  claim  in  his  pending  criminal  case,  the  superior  court  



entertained Selvester's petition and denied Selvester's speedy trial claim on its merits -  

                                                                                                                  



both in an initial decision and in a subsequent decision on reconsideration.   



                    Selvester now appeals the superior court's denial of his speedy trial claim  

                                                                                      



in the habeas corpus litigation.  



                    Because  Selvester  could  have  raised  his  speedy  trial  claim  by  filing  a  



motion  in  his  pending  criminal  case,  it  was  error  for  the  superior  court  to  entertain  

             



Selvester's speedy trial claim in a separate habeas corpus case, and it was error for the  

                                                                                                                 



court  to  decide  that  claim  on  its  merits.    The  superior  court  should  have  dismissed  



Selvester's habeas petition, without ever reaching the merits of his speedy trial claim,  

                                                                                    



and it should have directed Selvester to pursue his speedy trial claim in his ongoing  



criminal case.   



                    We must therefore vacate the superior court's decision.  But we are also left  



with  a  procedural  problem  created  by  the  superior  court's  mistaken  decision  to  let  



Selvester litigate his speedy trial claim in the habeas corpus case.  



                    It does not appear that Selvester ever independently raised his speedy trial  

                                                                             



claim in his criminal case - the forum where it should have been raised.  (We say this  

                                             



because Selvester has filed a separate appeal of his convictions in that related criminal  

                             



case, 3AN-11-13426 CR, and Selvester has not included a speedy trial claim among his  

                                                                                                                    



     1    Kolody v. State , 172 P.3d 842, 843 (Alaska App. 2007).  



                                                              - 2 -                                                         2452
 


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

"statement of points on appeal" in that other appeal.  See  Selvester v. State, Court of  



Appeals File No. A-12025.)  



                    One potential reason why Selvester did not separately raise his speedy trial  

                                         



claim in his related criminal case is that his defense attorney did not wish to raise this  

                                                                  



claim.   



                    Selvester was represented by counsel in his criminal case, so it would have  

                                                                                                         



been his attorney's decision (not Selvester's decision) whether to pursue a speedy trial  

claim in that criminal case. 2  Conceivably, Selvester asked his attorney to raise a speedy  

                                 



trial claim, but the attorney declined, so Selvester filed his pro se  habeas petition to try  



to litigate an issue his defense attorney in the criminal case refused to pursue.  



                    On the other hand, it is conceivable that Selvester and his attorney never  



discussed the speedy trial claim - that Selvester came up with this issue and then simply  

                                                    



chose to raise this claim independently in the habeas corpus action.   



                    If this was the situation, then Selvester was potentially deprived of his right  

                              



to counsel - because he represented himself when he litigated the speedy trial claim in  



the habeas corpus action, but he would have had the assistance of counsel if this claim  

                            



had been raised in the criminal case.  And at least potentially, Selvester may have failed  

                                                                                           



to raise the speedy trial claim in his criminal case because he thought he already had an  

                                    



appealable adverse ruling in the habeas corpus case.  



                    If Selvester was indeed prejudiced by the superior court's actions in this  

                                                                                   



habeas corpus case - either in the way we described in the preceding paragraph, or in  

                                                                                    



some other way - Selvester must pursue post-conviction relief under Alaska Criminal  

                                                                                               



Rule 35.1 if he wishes to seek a remedy.  



     2    See  McLaughlin v. State , 173 P.3d 1014, 1016 (Alaska App. 2007); Simeon v. State,  



90 P.3d 181, 184 (Alaska App. 2004).  



                                                            - 3 -                                                       2452
 


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

          Conclusion  



                   We  VACATE  the  superior  court's  decision  regarding  the  merits  of  



Selvester's speedy trial claim.  The superior court should have dismissed the habeas  

                            



corpus litigation as soon as it became clear that Selvester was trying to litigate an issue  

                                           



that could be raised in his related criminal case.  



                                                         - 4 -                                                     2452

 

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