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Steven Bradley Powell v. State of Alaska (1/24/2020) ap-2665

Steven Bradley Powell v. State of Alaska (1/24/2020) ap-2665

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                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STEVEN BRADLEY POWELL,  

                                                                                                                        Court of Appeals No. A-12595  

                                                                Appellant,                                          Trial Court No. 3AN-04-08034 CI  



                                                v.  

                                                                                                                                            O P I N I O N  

STATE OF ALASKA,  



                                                                Appellee.                                                No. 2665 - January 24, 2020  



                                Appeal  f                                  

                                                      rom  the   Superior  Court,  Third  Judicial  District,  

                                Anchorage, Mark Rindner, Judge.  



                                Appearances:                       Gavin  Kentch,  Law  Office  of  Gavin  Kentch,  

                                                                                                                                            

                                LLC, Anchorage, for the Appellant.  Nancy R. Simel, Assistant  

                                                                                                                                    

                                Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                 

                                Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                                                 



                                Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                                      

                                Judges.  



                                Judge ALLARD.   



                                Nearly ten years after the superior court dismissed his application for post-                                                                                      



conviction relief as time-barred, Steven Bradley Powell filed a motion under Alaska                                                                                                          



Civil Rule 60(b) seeking to reopen his post-conviction relief case on the ground that                                                                                                                



recent case law had shown the dismissal to be erroneous.                                                                                    Powell sought relief under                           


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

Rules 60(b)(4), (b)(5), and (b)(6).                                        The superior court denied him relief.                                              Powell now   



appeals.   For the reasons explained here, we affirm the superior court's judgment.                                                                                             



              Background facts and prior proceedings                        



                             In 2000, Powell was convicted, following a jury trial, of two counts of first-                                                                    



degree assault, one count of reckless endangerment, and one count of driving while                                                                                           



                                                                                                                                                                             1  

intoxicated   for   causing   a   serious   multi-vehicle   collision   while   driving   drunk.     At  



                                                                                                                                                  2  

                                                                                                                                                                      

sentencing, Powell received a composite sentence of 26 years to serve.                                                                                Powell appealed  



                                                                                                                                                     3 

his sentence as excessive to this Court, and we affirmed the sentence.                                                                                                            

                                                                                                                                                        Powell did not  



                                                   

appeal his convictions.  



                                                                                                                 

                             In 2004, two months after his sentence appeal became final, Powell filed  



                                                                                                                                                                                           

an application for post-conviction relief, alleging ineffective assistance of trial counsel.  



                                                                                                                                                                           

Specifically, Powell alleged that his trial counsel had incompetently failed to timely  



                                                                                                                               

inform him of a favorable plea offer extended by the State.  



                                                                                                                                                                     

                             The  State  moved  to  dismiss  the  application  as  procedurally  deficient  



                                                                                                                                                                               

because Powell had failed to provide a signed affidavit from his trial counsel.  The State  



                                                                                                                                                                   

also moved  to  dismiss the application as time-barred.   The dispute over timeliness  



                                                                                                                                                                                   

centered on the legal question of whether Powell's sentence appeal qualified as an  



                                                                                                                                                                               

"appeal" for purposes of AS 12.72.020(a)(3)(A), which sets out the time limits for post- 



                                                                                                         

conviction relief applications under Alaska law.  



       1      Powell v. State, 88 P.3d 532, 533 (Alaska App. 2004).  



       2      This composite sentence includes a year that was imposed on a petition to revoke   



probation in a separate case.  



       3      Powell, 88 P.3d at 533-34.  



                                                                                       - 2 -                                                                                  2665
  


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

                           Under   the   version   of   AS   12.72.020(a)(3)(A)   applicable   to   Powell,   a  



defendant could not bring a post-conviction relief claim "if the later of the following                                                                     



dates ha[d] passed":                       



                           if the claim relates to a conviction, two years after the entry   

                           of the judgment of the conviction, or if the conviction was                                                       

                           appealed, one year after the court's decision is final under the                                                    

                                                                                                        4  

                           Alaska Rules of Appellate Procedure.                                            



                                                                                 5  

Relying on dicta in an unpublished case,  the State argued that Powell was subject to the  

                                                                                                                                                                          



two-year deadline because Powell had appealed his sentence but not his conviction.  

                                                                                                                                                                             



                           The superior court agreed with this reasoning and dismissed Powell's post- 

                                                                                                                                                                      



conviction relief application as untimely.  Powell initially appealed the dismissal to this  

                                                                                                                                                                         



Court.  However, Powell failed to pursue the appeal, and it was ultimately dismissed by  

                                                                                                                                                                           



the clerk's office.  

                       



                           In  November  2006,  approximately  five  months  after  his  appeal  was  

                                                                                                                                                                       



dismissed for failure to prosecute, Powell filed a second application for post-conviction  

                                                                                                                                                 



relief.   In his second application for post-conviction relief (which was filed pro se ),  

                                                                                                                                                                        



Powell alleged that his first post-conviction relief attorney was ineffective for, inter alia,  

                                                                                                                                                                       



failing to follow through on the appeal of the dismissed post-conviction relief action.  

                                                                                                                                                                                  



Powell requested that an attorney be appointed to assist him with his second application  

                                                                                                                                                          

for post-conviction relief under Grinols v. State.6  

                                                                                                                                                                  

                                                                                                    The superior court denied this request  



       4      Former AS 12.72.020(a)(3)(A) (2004).  In 2008, the legislature reduced the two-year  



deadline to eighteen months.  See SLA 2008, ch. 75,  26.  



       5      See   Allen  v.  State ,  2001  WL  914020,  at  *2  (Alaska  App.  Aug.  15,  2001)  



(unpublished).  



       6      See Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000), aff'd in part,  74 P.3d 889  



(Alaska 2003) (holding that a  petitioner must be allowed the opportunity  to pursue a second  

application for post-conviction relief  to present a claim  of  incompetent representation by  the  

                                                                                                                                                      (continued...)  



                                                                                   - 3 -                                                                             2665
  


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

 and   dismissed   Powell's   second   post-conviction   relief   application   as   barred   by   res  



               7  

judicata .                                                                                                                        

                   Powell did not appeal the dismissal of his second post-conviction relief  



 application.  



           Our decision in Geisinger v. State  

                                                          



                      Seven years later, in 2014, this Court issued a decision in Geisinger v.  

                                                                                                                                        

 State.8  

                                                                                                                                     

            Like Powell, Geisinger had appealed his sentence but not his conviction, and had  



                                                                                                                                         9  

                                                                                                                                            

 applied for post-conviction relief several months after his sentence appeal became final. 



                                                                                                                                     

 Also like Powell, Geisinger's application was dismissed as untimely on the ground that  



                                                                                                                              

 his  sentence  appeal  did  not  qualify  as  an  "appeal"  for  purposes  of  AS  12.72.- 



                       10  

 020(a)(3)(A).                                                                                                                       

                          However, unlike Powell, Geisinger diligently pursued an appeal of this  



                       

 ruling to this Court.  



                                                                                                                                    

                      On appeal, the State conceded error, acknowledging that the phrase "the  



                                                                                                                                    

 conviction was appealed" under AS 12.72.020(a)(3)(A) applied to appeals raising both  



                                            11  

                                                                                                                           

 sentence and merit claims.                     We found this concession well-taken, and we held that,  



                                                                                                                                     

 pursuant  to  AS  12.72.020(a)(3)(A),  "a  defendant  who  appeals  his  sentence  or  his  



                                                                                                                                       

 conviction, or both, has one year from the date the decision on appeal is final to file an  



      6    (...continued)  



 first post-conviction relief attorney).  



      7    In  its  briefing  on  appeal,  the  State   acknowledges  that  the  dismissal  of   Powell's  



 ineffective assistance of counsel claims against his first post-conviction relief attorney was                                      

 erroneous under Grinols.  



      8     Geisinger v. State, 334 P.3d 1241 (Alaska App. 2014).  



      9    Id. at 1241-42.  



      10   Id. at 1242-43.  



      11   Id.  



                                                                  - 4 -                                                           2665
  


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

                                                                                                                                                              12  

 application   for   post-conviction   relief."                                                                                                                        Thus,  Geisinger's   post-conviction   relief  



 application was timely filed and should not have been dismissed.                                                                                                                                                  



                                                    Approximately eighteen months after                                                                                                             Geisinger  was decided, Powell filed                                                                                      



 a motion under Civil Rule 60(b) in his original 2004 post-conviction relief case, seeking                                                                                                                                                                                                                       



 relief based on the recent change in decisional law.                                                                                                                                



                                                    Alaska Civil Rule 60(b) authorizes a court to relieve a party from "a final                                                                                                                                                                                              



judgment, order, or proceeding" for the following reasons:                                                                                                                                          



                                                                              (1)  mistake, inadvertence, surpriseor                                                                                                       excusable  

                                                                              neglect;  



                                                                              (2)   newly discovered evidence which by due                                                                                                                         

                                                                              diligence   could   not   have   been   discovered   in  

                                                                              time to move for a new trial under Rule 59(b);                                                                                                             



                                                                              (3)    fraud    (whether    heretofore    denominated  

                                                                              intrinsic   or  extrinsic),   misrepresentation,   or  

                                                                              other misconduct of an adverse party;                                                                                      



                                                                              (4)  the judgment is void;                                                  



                                                                              (5)  the judgment has been satisfied, released, or                                                                                                                          

                                                                              discharged, or a prior judgment upon which it                                                                                                                                 

                                                                              is   based    has    been    reversed    or    otherwise  

                                                                              vacated,  or   it   is   no   longer   equitable   that   the  

                                                                             judgment should have prospective application;                                                                                          

                                                                              or  



                                                                              (6)   any other reason justifying relief from the                                                                                                                      

                                                                              operation of the judgment.                                     



              12          Id. at 1244.  



                                                                                                                                                               -  5 -                                                                                                                                                      2665
  


----------------------- Page 6-----------------------

A motion under Rule 60(b) must be made "within a reasonable time" and "for reasons                                                                                     



 (1), (2) and (3) not more than one year after the date of notice of the judgment or orders                                                                               

 as defined in Civil Rule 58.1(c)."                                    13  



                                                                                                                                                                           

                             In  the  current  case,  Powell  sought  relief  under  Rules  60(b)(4)  ("the  



                                                                                                                                                                            

judgment is void"); (b)(5) ("it is no longer equitable that the judgment should have  



                                                                                                                                                                            

prospective application"); and (b)(6) (the catchall provision). Powell did not seek relief  



                                                                                                                                                       

under Rule 60(b)(1), (b)(2), or (b)(3), and he expressly acknowledged that any claims  



                                                                                                                                                                        

under those subsections would fall outside the one-year deadline and would not be  



timely.  



                                                                                                                                                                                

                             The superior court denied Powell's Rule 60(b) motion, primarily on the  



                                                                                                                                                                           

 ground that Powell was misusing Rule 60(b) as a "substitute for the appeal he never  



                                                                                                                                                                        

perfected."  The court also addressed and rejected each of the three subsections Powell  



                                                                                                                                                                   

had relied on, ruling that the original judgment was not void, that the original judgment  



                                                                                                                                                                                  

 did not have prospective application, and that the equities did not weigh in favor of  



                                                                                       

 granting Powell relief under the catchall provision.  



                                                       

                             This appeal followed.  



                                                                                                                         

              Alaska Civil Rule 60(b) and post-conviction relief litigation  



                                                                                                                                                                                    

                             In McLaughlin v. State, this Court held that a defendant could not use a  



                                                                                                                                                                            

 Civil Rule 60(b) motion to circumvent the applicable statute of limitations on post- 



                                                                                                                                          14  

                                                                                                                                                                                 

 conviction  relief  applications  (as  laid  out  in  AS  12.72.020).                                                                             Our  decision  in  



                                                                                                                   

McLaughlin is sometimes misread as standing for the proposition that a defendant can  



        13    Alaska R. Civ. P. 60(b).
  



        14    McLaughlin v. State , 214 P.3d 386, 387 (Alaska App. 2009).
  



                                                                                       -  6 -                                                                               2665
  


----------------------- Page 7-----------------------

 never  file a Rule 60(b) motion in a post-conviction relief case.                                                                                                                 But this is too expansive                 



 a reading of                       McLaughlin .  



                                       Alaska Statute 12.72.010 and Alaska Criminal Rule 35.1 govern post-                                                                                                                                 



 conviction relief litigation under Alaskalaw. CriminalRule35.1(g)                                                                                                                              provides, in relevant  



 part, that "[a]ll rules and statutes applicable in civil proceedings . . . are available to the                                                                                                                                                 



 partiesexcept that                                 AlaskaRuleofCivilProcedureRule26(a)(1)-(4) [definingprocedures                                                                                                         



 for mandatory disclosures] does not apply to post-conviction relief proceedings." Thus,                                                                                                                                                  



 as a general matter, Civil Rule 60(b) motions can be filed in post-conviction relief                                                                                                                                                     



 proceedings.  



                                       However, their role is limited.  In                                                               McLaughlin, the defendant tried to use   



 a Rule 60(b) motion to initiate litigation of post-conviction relief claims that would                                                                                                                                                



                                                                                                  15 

                                                                                                                                                                        

 otherwise have been time-barred.                                                                      We held that this use was foreclosed by AS 12.72  

                                              



                                                                                                                                                                                                                        

 and  Criminal  Rule  35.1,  which  were  intended  to  be  the  sole  means  of  collaterally  



                                                                                            16  

                                                            

 attacking a criminal conviction. 



                                                                                                                                                                                                                                          

                                       As Judge Mannheimer noted in his  concurrence in McLaughlin, other  



                                                                                                                                                                                                                                     

jurisdictions have likewise concluded that a defendant cannot use a Rule 60(b) motion  



                                                                                                                                                                                                                                          

 to  raise  post-conviction  relief  claims  in  contravention  of  that  jurisdiction's  post- 



                                                                                                      17  

                                                                                      

 conviction relief statutes and rules. 



                                                                                                                                                                                                                          

                                       The  United  States  Supreme  Court  has  also  addressed  the  distinction  



                                                                                                                                                                                                                                     

 between permissible and impermissible  uses of Federal Civil Rule 60(b) in federal  



           15       Id. at 386.  



           16       Id. at 387.  



           17       See id.  at 388 (Mannheimer, J., concurring) (collecting cases); see also Kell v. State,  



 285 P.3d 1133, 1140 (Utah 2012) (explaining that a motion under Utah's Rule 60(b) cannot  

 be  used  "as  a   substitute  for  a  prohibited  postconviction  petition"  or  to  "circumvent  

 conflicting statutory mandates").  



                                                                                                                      -  7 -                                                                                                               2665
  


----------------------- Page 8-----------------------

                                  18  

habeas   proceedings.                   In   Gonzalez   v.   Crosby,   the   United   States   Supreme   Court  



acknowledged that "Rule 60(b) has an unquestionably valid role to play in                                                       habeas  



            19  

cases."                                                                                                                        

               But the Court drew a sharp distinction between permissible Rule 60(b) motions  



                                                                                                                                     

that  attack  "some  defect  in  the  integrity  of  the  federal  habeas  proceedings"  and  



                                                                                                                                

impermissible  Rule  60(b)  motions  that  attack  "the  substance of  the  federal  court's  



                                                           20  

                                                                                                                                   

resolution of a claim on the merits."                          In other words, the Court held that Rule 60(b)  



                                                                                                                                         

could be used to challenge a default judgment in a post-conviction relief case, but it  



                                                                                                                                      

could not be used to raise new grounds for post-conviction relief or to challenge any  



                                                                                       21  

                                                                              

rulings on the merits of a post-conviction relief claim. 



                                                                                                                                   

                      Gonzalez involved facts very similar to the facts presented here.   Like  



                                                                                                                                       

Powell, Gonzalez's petition for habeas corpus was dismissed as time-barred based on  



                                                  22  

                                                                                                                      

                                                       In addition, like Powell, the case law subsequently  

then-existing federal case law. 



                                                                                                                         

changed and Gonzalez's habeas petition would not have been considered time-barred  



                                         23  

                                                                                                                                    

                                              Like Powell, Gonzalez filed a motion under  Civil Rule  

under the new case law. 



                                                                                                                                        24  

                                                                                                                                             

60(b)(6), seeking relief from the default judgment based on the recent change in law. 



      18   See Gonzalez v. Crosby, 545 U.S. 524 (2005).
  



      19   Id. at 534.
  



     20    Id. at 532.
  



     21    See id. at 534.
  



     22    Id. at 527.
  



     23    Id.
  



     24    Id.
  



                                                                  -  8 -                                                           2665
  


----------------------- Page 9-----------------------

Although the United States Supreme Court ultimately denied Gonzalez any relief, the                                                                   



                                                                                                                                                    25  

Court found Gonzalez's motion a proper use of Rule 60(b) in a habeas proceeding.                                                                          



                                                                                                                                         

                        We  find  the  United  States  Supreme  Court's  reasoning  in  Gonzalez  



                                                                                                                                                 

persuasive and helpful in distinguishing between "true" (i.e., permissible) Rule 60(b)  



                                                                                                                                         

motions and Rule 60(b) motions that should be treated as the equivalent of a successive  



                                                                                                                                                       

application for post-conviction relief.   Here, Powell is not using Civil Rule 60(b) to  



                                                                                                                                                   

attack the underlying criminal convictions; nor is he using Rule 60(b) to raise new  



                                                                                                                                                  

grounds for post-conviction relief or to challenge any ruling on the merits of his post- 



                                                                                                                                                    

conviction relief claim.  Instead, he is challenging a procedural ruling in his case that  



                                                                                                                                       

precluded resolution of his post-conviction relief claim on its merits - a procedural  



                                                                                                                                                    

ruling that now appears to be erroneous in light of the recent change in decisional law.  



                                                                                                                                                 

                        Because we conclude that this was an appropriate use of a Rule 60(b)  



                                                                                                                                                  

motion in a post-conviction relief case, we now turn to the merits of Powell's Rule 60(b)  



claims.  



            Powell's claim under Rule 60(b)(4)  

                                                             



                        Alaska Civil Rule 60(b)(4) authorizes relief from a final judgment when  

                                                                                                                               



"the judgment is void." Whether a judgment is void is a matter of law that we review de  

                                                                                                                                                       



          26  

novo.  



      25    See id. at 536-37.  



      26    See Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974) ("[T]he  



validity of a judgment is strictly a question of law.").  



                                                                         -  9 -                                                                   2665
  


----------------------- Page 10-----------------------

                                                                                                                         27  

                      A   judgment   is   not   void   merely   because   it   is   erroneous.                                 Instead,   a  



judgment is "void" for purposes of Civil Rule 60(b)(4) only if (1) the court that rendered                                        



the judgment lacked jurisdiction over the subject matter or the parties, or (2) the court  



                                                                                28  

                                                                                                                                 

acted in a manner inconsistent with due process.                                    In the current case, Powell concedes  



                                                                                                                                            

that the superior court had personal and subject matter jurisdiction in his case, but he  



                                                                   

argues that the court acted in a manner that was "inconsistent with due process" when  



                                                                      

it summarily dismissed his application as untimely.  



                                                                                                                                  

                      We find no merit to this claim. Due process requires that there be adequate  



                                                                                                                                           

notice to the interested parties of the pendency of the action and the opportunity for the  



                                                29  

                                                                                                                                            

interested parties to be heard.                      Here, the record shows that Powell had notice when the  



                                                                                                                                           

 State moved to dismiss his post-conviction reliefapplication asuntimely,and Powell had  



                                                                                                                                              

the opportunity to be heard on that issue (even though his attorney chose not to file a  



                 30  

response).                                                                                                                                

                      We therefore find no merit to Powell's contention that the judgment was  



      27   Blaufuss  v.  Ball,  305  P.3d  281,  285-86  (Alaska  2013)  (quoting  11  Charles  Alan  



                                                                                                                                   

Wright et al., Federal Practice and Procedure   2862 (3d ed. 2019)); see also Szabo v.  

                                                                                                                                                  

Anchorage , 320 P.3d 809, 814 (Alaska 2014) ("In the interests of finality, the concept of  

                                                                                             

void judgments [for purposes of Rule 60(b)(4)] is narrowlyconstrued." (quoting Leisnoi, Inc.  

v. Merdes & Merdes, P.C., 307 P.3d 879, 891 (Alaska 2013))).  



      28  

                                                                                                                     

           See  Burrell  v.  Burrell,  696  P.2d  157,  163  n.11  (Alaska  1984); Kenai  Peninsula  

Borough v. English Bay Vill. Corp ., 781 P.2d 6, 10 (Alaska 1989); see also McLaughlin v.  

State, 214 P.3d 386, 390-91 (Alaska App. 2009) (Mannheimer, J., concurring) (explaining  

                                                                                             

that a judgment is void for purposes of Rule 60(b)(4) 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").  



      29   See Aguchak, 520 P.2d at 1356.  



      30   See Rowland v. Monsen, 135 P.3d 1036, 1039 (Alaska 2006) (explaining that a party  



                                                                                                                           (continued...)  



                                                                   -  10 -                                                             2665
  


----------------------- Page 11-----------------------

 void for lack of due process, and we affirm the superior court's dismissal of Powell's                                                                                                                                                                                                         



 claim under Rule 60(b)(4).                                        



                         Powell's claim under Rule 60(b)(5)                                                                   



                                                  Civil Rule 60(b)(5) authorizes relief from a final judgment when                                                                                                                                                                                                "the  



judgment has been satisfied, released, or discharged, or a prior judgment upon which it                                                                                                                                                                                                                                     



 is based has been reversed or otherwise vacated, or it is no longer equitable that the                                                                                                                                                                                                                              



judgment should have prospective application." Powell argues that he is entitled to relief                                                                                                                                                                                                                    



 under this subsection because, given the change in law represented by                                                                                                                                                                                         Geisinger, it is no                                      



 longer equitable that his case remain dismissed as time-barred.                                                                                                                           



                                                  The superior court dismissed this claim on the ground that the judgment                                                                                                                                                                    



 dismissing   Powell's   post-conviction   relief   application   as   time-barred   did   not   have  



 "prospective application" as that term is understood under Rule 60(b)(5). We agree with                                                                                                                                                                                                                         



 this conclusion.                                            Judgments that have a prospective effect for purposes of Rule 60(b)(5)                                                                                                                                                               



 include   declaratory   judgments,   injunctions   of   a   continuing   nature,   and   paternity  

judgments that give rise to a duty to pay future child support.                                                                                                                                                              31  

                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                      They do not include final  



             30           (...continued)  



 is not deprived of notice or an opportunity to be heard when her attorney failed to file an  

                                                                                                                                                                                                                                                                         

 opposition to a motion).  



             31          See Ferguson v. State ex rel. P.G., 977 P.2d 95, 100 (Alaska 1999) (discussing Rule  



                                                                                                                                                                                                                                                                                 

 60(b)(5) relief available against "onlythe prospective, or executory, aspects of judgments[,]"  

                                                                                                                                                                                                                                                                                                                  

 which includes "a duty to pay child support in the future" but not the collection of past  

                                                      

 amounts due); Farrell ex rel. Farrell v. Dome Labs., 650 P.2d 380, 384 (Alaska 1982)  

 (noting that "clause (5) is typically invoked to obtain relief from declaratory judgment and  

 injunctions whose continued enforcement becomes inequitable").  



                                                                                                                                                      -  11 -                                                                                                                                                 2665
  


----------------------- Page 12-----------------------

judgments such as the one in Powell's case, which simply resolve present claims related                                                          

to an alleged past wrong.                     32  



                                                                                                                                                    

                        On appeal, Powell contends that the superior court's dismissal of his post- 



                                                                                                                                            

 conviction relief application does have "prospective application" because the dismissal  



                                                                                                                                              

 effectively precludes Powell from raising the same ineffective assistance of counsel  



                                                                                                                                                  

 claims in any future post-conviction relief application.  But the Alaska Supreme Court  



                                                                                                                                             

has directly rejected this argument. In Bauman v. Day, for example, the Alaska Supreme  



                                                                                                                                        

 Court ruled that "the preclusive effect of a dismissal with prejudice is not a prospective  



                                                                         33  

                                                                                                                                                  

 effect for the purposes of Rule 60(b)(5)."                                   Likewise, in Farrell ex rel. Farrell v. Dome  



                                                                                                                                                      

Laboratories, theSupremeCourt ruled that Rule60(b)(5) doesnotgenerally provide"[a]  



                                                                                                                      34  

                                                                                                                                                       

basis for relief from an unconditional dismissal without prejudice."                                                      In other words, the  



                                                                                                                                                     

mere fact that the law has changed since the judgment was entered or that a ruling will  



                                                                                                                                              

have future collateral estoppel effect (something obviously common to many rulings)  



                                                                                                                                                   

 does  not  provide  the  requisite  prospective  effect  necessary  for  relief  under  Rule  



                 35  

 60(b)(5).           



      32    See   Leisnoi,  Inc.  v.  Merdes  &   Merdes,  P.C.,   307  P.3d  879,  893  (Alaska  2013)  



 (explaining that "Rule 60(b)(5) 'by definition . . . cannot apply to a judgment that simply                                             

offers a present remedy for a past wrong'" (quoting                                          Bauman v. Day               , 892 P.2d 817, 829  

 (Alaska 1995))); 11 Charles Alan Wright et al., Federal Practice and Procedure  2863 (3d   

 ed. 2019) ("[J]udgments that offer a present remedy for a past wrong do not fall within [Rule   

 60(b)(5)].").  



      33    Bauman v. Day, 892 P.2d 817, 829 (Alaska 1995) (citing Twelve John Does v. D.C.,  



 841 F.2d 1133, 1138-40 (D.C. Cir. 1988) (interpreting identical federal rule)).  



      34    Farrell, 650 P.2d at 385.  



      35    Ferguson,  977  P.2d  at  101  ("Virtually  every  court  order  causes  at  least  some  

                                                                                                

reverberations into the future, and has, in that literal sense, some prospective effect . . . . That  

 a court's action has continuing consequences, however, does not necessarily mean that it has  

                                                                                                                                   

                                                                                                                                     (continued...)  



                                                                         -  12 -                                                                   2665
  


----------------------- Page 13-----------------------

                                             Because we find no merit to Powell's contention that the default judgment                                                                                                                                              



in his 2004 post-conviction relief application has "prospective application," we find no                                                                                                                                                                                                   



error in the superior court's denial of Powell's claim under Rule 60(b)(5).                                                                                                                                               



                      Powell's claim under Civil Rule 60(b)(6)                                                                       



                                             Powell's final claim for relief is under Civil Rule 60(b)(6), the catchall                                                                                                                                                 



provision that authorizes relief "for any other reason justifying relief from the operation                                                                                                                                                                        



of the judgment."                                               The Alaska Supreme Court has held that while Civil Rule 60(b)                                                                                                                                                   



should be "liberally construed" to effect justice, relief should be granted under Rule                                                                                                                                                                                            

60(b)(6) only in "extraordinary circumstances."                                                                                                                  36  



                                                                                                                                                                                                                                                                                                       

                                             Powell argues that the change in decisional law represented by Geisinger  



                                                                                                                                                                                                                                                                                      

constitutes "extraordinary circumstances" deserving of relief under Rule 60(b)(6).  But  



                                                                                                                                                                                                                                                                                  

relief under Rule 60(b)(6) is exclusive of relief that could have been gained through other  



                                         37  

                                                                                                                                                                                                                                                                                   

subsections.                                      As a general matter, "a party seeking relief from a judgment on the basis  



                                                                                                                                                                                                                                                                                      

of a subsequent change in the law should proceed under Rule 60(b)(1), treating the trial  



           35          (...continued)  



 'prospective application' for the purposes of Rule 60(b)(5)." (quoting Twelve John Does, 841  

                                                                                                                                                             

F.2d at 1138)).  



           36          O'Link v. O'Link, 632 P.2d 225, 229-30 (Alaska 1981).  



           37         Id.  at 229; see also Cook v. Cook, 249 P.3d 1070, 1084 (Alaska 2011) ("[A] party   



may   only   obtain   Rule   60(b)(6)   relief   if   no   other   Rule   60(b)  clause   applies   and  

 'extraordinary circumstances' exist.                                                                                      "); Farrell, 650 P.2d at 385 ("It is well settled that                                                             

clause (6) and the first five clauses of Rule 60(b) are mutually exclusive.").   



                                                                                                                                        -  13 -                                                                                                                                   2665
  


----------------------- Page 14-----------------------

                                                                                             38  

court's earlier judgment as a mistake of law."                                                     Here, as Powell acknowledges, he       

cannot seek relief under Rule 60(b)(1) because any such claim would be untimely.                                                                                  39  



                                                                                                                                                          

                          The State argues that Powell's inability to seek relief under Rule 60(b)(1)  



                                                                                                                                                                    

means that he is foreclosed from obtaining relief under Rule 60(b)(6).  But this is not  



                                                                                                                                             

entirely accurate.  What it does mean is that Powell is required to show "extraordinary  



                                                                                                                                                                 

circumstances" beyond the simple change in law in order to qualify for relief under Rule  



                                                                                                                                                          

60(b)(6).   As the Alaska Supreme Court recognized in Norman v. Nichiro Gyogyo  



                                                                                                                                                                   

Kaisha, Ltd., "[a] change in law after a final  judgment has been rendered will not  



                                                                                                                                              

ordinarily  justify  relief  under  Rule  60(b)(6)  unless  there  are  other  extraordinary  



                               40                                                    41  

circumstances."                                                        

                                     Federal law is in accord. 



       38    Pearson  v.  Bachner,  503  P.2d  1401,  1402  (Alaska  1972);  see  also   Lawrence  v.  



Lawrence , 718 P.2d 142, 145 (Alaska 1986) ("When a party seeks relief from a judgment,                                                             

which does not have prospective application, because of a subsequent change in the law a                                                                                

Civil Rule 60(b)(1) motion should be used.").  



       39    See  Alaska R. Civ. P. 60(b)  (requiring motions under (b)(1), (b)(2), (b)(3) to be  

                                                                      

brought "not more than one year after the date of notice of the judgment"); see also Pearson,  

                                                                                                            

503 P.2d at 1402 ("The policies that finality of judgments be favored and that Rule 60(b)(1)  

                                                                                        

motions not be substitutes for appeals, counsel that a motion for relief based on a subsequent  

                                                                                                                                  

change in law be made within the time for appeal from the judgment.").  



       40    Norman v. Nichiro Gyogyo Kaisha, Ltd., 761 P.2d 713, 715 (Alaska 1988); see also  



Farrell, 650 P.2d at 385 (noting that a litigant must show that their case involves "something  

more than one of the grounds stated in the first five clauses" to obtain relief under 60(b)(6)  

                                                                                                                                               

(internal citations omitted)).  



       41    See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 536-37 (2005) (holding that a change in  

                                

law  showing  that  a  previous  judgment  may  have  been  incorrect  is  not,  by  itself,  an  

                                                                                                                                                                     

"extraordinary circumstance" justifying relief under Rule 60(b)(6)); Agostini v. Felton , 521  

                                                                                       

U.S. 203, 239 (1997) (holding that "[i]ntervening developments in the law by themselves  

                                                                                                                                                     

rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)" );  

                                                                                                                               

Nash v. Hepp, 740 F.3d 1075, 1078-79 (7th Cir. 2014) (considering "the 'mundane' and  

                                                                                                                                                                   

                                                                                                                                                 (continued...)  



                                                                               -  14 -                                                                          2665
  


----------------------- Page 15-----------------------

                           In other words, it is not enough for Powell to simply show that the law has                                                                



changed to obtain equitable relief under Rule 60(b)(6).                                                       Instead something "more" must                         



be shown.              What "more" must be shown to qualify as "extraordinary circumstances"                                                  



deserving of equitable relief under Rule 60(b)(6) is not well-defined, and is generally left                                                                           



                                                            42  

                                                                                                                                                                       

to the trial court's discretion.                                  General considerations include "the diligence of the  



                                                                                                                                                               

movant, the probable merit of the movant's underlying claims, the opposing party's  



                                                                                                                                                                         43  

                                                                                                                                                                               

reliance interests in the finality of the judgment, and other equitable considerations." 



                                                                                                                                                                     

A  criminal  defendant's  colorable  claim  of  innocence  should  weigh  heavily  in  this  

analysis.44  



       41     (...continued)  



 'hardly extraordinary' situation in which the district court applied the governing rule of  

                                                                    

procedural default at the time of its decision and the caselaw changed after judgment became  

                                                              

final"); Cox v. Horn, 757 F.3d 113, 121 (3d Cir. 2014) (noting that "intervening changes in  

                                         

the law rarely justifyrelief from final judgments under 60(b)(6)"); see also Gravel v. Alaskan  

                                                                                                                                            

 Vill., Inc., 423 P.2d 273, 275 n.6 (Alaska 1967) (noting that Fed. R. Civ. P. 60(b)(6) is  

                      

"identical with Alaska Civil Rule 60(b)(6)").  



       42  

                                                                                                                                

             See  Cox,  757  F.3d  at  122  (directing  trial  courts  to  apply a  "flexible,  multifactor  

                                                                                                                                                         

approach to Rule 60(b)(6) motions" that takes into account "all the particulars of a movant's  

case"); Miller v. Mays , 879 F.3d 691, 698 (6th Cir. 2018) (noting that "Rule 60(b)(6) motions  

                                                                                                                                                         

necessitate  'a  case-by-case  inquiry'  in  which  the  district  court  'intensively  balance[s]  

                                                                                                                                         

numerous factors, including the competing policies of the finality of  judgments and the  

                                                                                                                                                   

incessant command of the court's conscience that justice be done in light of all the facts'"  

(citing West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015))).  



       43     Gonzalez, 545 U.S. at 540 (citing 11 Charles Alan Wright et al., Federal Practice and  



Procedure   2857 (2d ed. 1995 & Supp. 2004)); see also Norman, 761 P.2d at 717 ("[I]n  

                                                                                                                                                          

deciding Rule 60(b)(6) motions we give consideration to the following factors: the prejudice,  

                                                                                                                                                    

if any, to the non-moving party if relief from judgment is granted, whether any intervening  

                                                                                                                                                        

equities make the granting of relief inappropriate, and any other circumstances relevant to  

                                                                                                                  

consideration of the equities of the case.").  



       44    See Satterfield v. Dist. Att'y Phila., 872 F.3d 152, 160-61 (3d Cir. 2017) ("The fact  

                                                                                   

                                                                                                                                                   (continued...)  



                                                                                -  15 -                                                                           2665
  


----------------------- Page 16-----------------------

                                             Here,   Powell's   underlying   post-conviction   relief   claim is                                                                                                                                         that   his   trial  



counsel was ineffective and that this ineffective assistance of trial counsel deprived                                                                                                                                                                                



Powell of a favorable plea agreement that would have resulted in a significantly lower                                                                                                                                                                                            



sentence than the one he received after trial.                                                                                                        On appeal, Powell argues that the equities                                                                           



of his case weigh in favor of granting him the relief needed to litigate the underlying                                                                                                                                                                         



merits of this claim.                          



                                             But the superior court found otherwise.                                                                                               In its order denying Powell relief,                                                            



the superior court focused on Powell's lack of diligence in appealing the dismissal of his                                                                                                                                                                                                  



first post-conviction relief action and the length of time between that dismissal and the                                                                                                                                                                                                  



Rule 60(b) motion.                                                    The superior court found it "significant" that "every issue that                                                                                                                                                 



Powell now raises could have been appealed" and that                                                                                                                                                 "[t]he same arguments that                                                        



Geisinger successfully made, could have been made by Powell" if he had properly                                                                                                                                                                                        

appealed the dismissal of his first post-conviction relief action.                                                                                                                                                   45  



                                                                                                                                                                                                                                                                                  

                                             In  response,  Powell  asserts  that  he  could  not  have  raised  the  same  



                                                                                                                                                                                                                                                                                          

arguments as Geisinger in his appeal because his post-conviction relief attorney did not  



                                                                                                                                                                                                                                                                          

preserve those arguments.  But the trial court ruled directly on the question of whether  



           44          (...continued)  



that  Satterfield's  state  proceeding  ended  a  decade  ago  should  not  preclude  him  from  

                                                                                                                                                                                                                                                                                    

obtaining relief under Rule 60(b) if the court concludes that he has raised a colorable claim  

                                                                                                                    

that he meets the threshold actual-innocence standard and that other equitable factors weigh  

in his favor."); see also House v. Bell, 547 U.S. 518, 536-37 (2006) (discussing "miscarriage  

                                                                                                                                                                                                                                                                              

of justice" exception in actual innocence cases and reiterating that considerations of finality  

                                                                                                                                                                                                                        

and comity must yield to the fundamental right not to be wrongfully convicted (citing Schlup  

v. Delo, 513 U.S. 298, 320 (1995))).  



           45  

                                                                                                                                                                                                         

                       Cf. Nash, 740 F.3d at 1079 (denying defendant relief under Rule 60(b)(6) despite  

change  in  law  because  "Nash  could  have  appealed  and  made  the  arguments  that  the  

                                                                  

petitioners made in [the cases that changed the law]" and "[h]is failure to do so does not  

make the circumstances of his case extraordinary").  



                                                                                                                                         -  16 -                                                                                                                                    2665
  


----------------------- Page 17-----------------------

Powell's   sentence   appeal   qualified   as   an   appeal   under   AS   12.72.020(a)(3)(A).   



Moreover, at the time, there was no published case law on this question and Powell's                                                                                                                                                                                                                       



case, like                            Geisinger, would have raised a purely legal question that this Court would                                                                                                                                                                                                     



review  de novo                                             .  



                                                    Powell also contends that his failure to appeal the dismissal of his first post-                                                                                                                                                                                       



conviction relief application was the result of ineffective assistance of counsel.                                                                                                                                                                                                                                          But  



Powell abandoned this claim of ineffective assistance of counsel by failing to appeal the                                                                                                                                                                                                                                         



 superior court's erroneous dismissal of this claim in his second application for post-                                                                                                                                                                                                                                  



conviction relief.                                                       Powell has provided no explanation for his failure to appeal the                                                                                                                                                                                       



dismissal   of   his   second   post-conviction   relief   application.     Nor   has   he   adequately  



explained his lack of diligence in pursuing the first appeal.                                                                                                                                         



                                                    The superior court also found that the passage of time weighed against                                                                                                                                                                                       



granting Powell relief under Rule 60(b)(6).                                                                                                                                The court noted that motions under Rule                                                                                                         



60(b)(6) must be brought "within a reasonable time" and the court found the almost ten-                                                                                                                                                                                                                                        



year delay in bringing the Rule 60(b) motion unreasonable.                                                                                                                     



                                                    Powell   argues   that   he   brought   the   motion   "within   a   reasonable   time"  



because he filed it within approximately eighteen months of the                                                                                                                                                                                  Geisinger  decision. We    



agree with Powell that "reasonableness" in this context should be measured primarily                                                                                                                                                                                                                     



from when the legal basis for the Rule 60(b) motion first arose -                                                                                                                                                                                    i.e., from the                                    Geisinger  



                                   46  

decision.                                                                                                                                                                                                                                                                                                                              

                                             However, we express no opinion as to whether an eighteen-month delay is  



                                                                                                                                                                                                                                                                                                                            

"reasonable"  under  these  circumstances  because  we  conclude  that,  even  if  it  was  



                                                                                                                                                                                                                                                                                                               

"reasonable" to wait eighteen months, the court was still permitted to take into account  



             46           Cf. Cox, 757 F.3d at 116 (holding that ninety days between a change in law and a                                                                                            



defendant filing a Rule 60(b)(6) motion was reasonable); Moses v. Joyner , 815 F.3d 163, 166  

(4th Cir. 2016) (finding delays of two-and-a-half years and fifteen months between a change                                                                                        

in law and a defendant filing a Rule 60(b)(6) motion unreasonable).  



                                                                                                                                                            -  17 -                                                                                                                                                       2665
  


----------------------- Page 18-----------------------

                                                                                                             47  

the full passage of time when weighing the equities of this case.                                                As other courts have         



recognized,   "[c]onsiderations   of   repose   and   finality   become   stronger   the   longer   a  



                                             48  

decision has been settled."                                                                                                                    

                                                  Powell ignores this principle in his briefing, asserting that  



                                                                                                                                                

the prejudice to the State in granting him relief is "scant."  But we conclude that the  



                                                                                                                                                

superior  court could  properly  take into  account the prejudice  to  the State (and  the  



                                                                          

victims) in reopening litigation long since closed.  



                                                                                                                                     

                       Whether to grant or deny a Civil Rule 60(b)(6) motion is an equitable  



                                                                                    49 

                                                                                        

matter left, in the first instance, to the trial court.                                 Given the circumstances presented  



                                                                                                                                             

here, we find no abuse of discretion in the superior court's refusal to grant Powell relief  



                     

under Rule 60(b)(6).  



                                 

            Conclusion  



                                                                                         

                       The judgment of the superior court is AFFIRMED.  



      47    We acknowledge that, six months after the                           Geisinger  decision, Powell appears to have  



filed a third application for post-conviction relief. The record in this appeal does not include   

a copy of the third application.  



      48    Cox, 757 F.3d at 125; see Gonzalez, 545 U.S. at 536-37 (cautioning against Rule  

                                                         

60(b)(6) relief in "cases long since final" and "long-ago dismissals"); see also Satterfield v.  

                         

Dist. Att'y Phila., 872 F.3d 152, 164 (3d Cir. 2017) ("When more time has elapsed since the  

final conviction, a court will give more weight to the state's interest in finality.").  



      49    See McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999); see also Klapprott v. United  



                                                                                                                             

States, 335 U.S. 601, 614-15 (1949) (explaining that "[Rule] 60(b) strongly indicates on its  

                                                                                                                              

face that courts no longer are to be hemmed in by the uncertain boundaries of these and other  

                                                                                                                                             

common law remedial tools" and that "the language of the 'other reason' clause . . . vests  

                                                                        

power  in  courts  adequate  to  enable  them  to  vacate  judgments  whenever  such  action  is  

appropriate to accomplish justice"); Livingston v. Livingston , 572 P.2d 79, 85 (Alaska 1977)  

("Rule 60(b), in its entirety, attempts to preserve the delicate balance between the conflicting  

                                                                                                                                           

principles that litigation be brought to an end and that justice be done in light of all the  

facts.").  



                                                                     -  18 -                                                                2665  

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