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Roberts v. State (8/10/2007) ap-2115

Roberts v. State (8/10/2007) ap-2115

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     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-8716
Appellant, ) Trial Court No. 4FA-03-1065 CI
v. )
) O P I N I O N
Appellee. ) No. 2115 August 10, 2007
Appeal    from     the
          Superior  Court,  Fourth  Judicial  District,
          Fairbanks, Ben J. Esch, Judge.

          Appearances:  Dick L. Madson, Law Offices  of
          Dick L. Madson, Fairbanks, for the Appellant.
          Nancy  R.  Simel, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for the Appellee.

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

          STEWART, Judge.

          Marvin   L.  Roberts  was  convicted  of  second-degree
murder,  first-degree  robbery, and second-degree  assault.1   We
affirmed his convictions  as well as the convictions of  his  co-
defendant, Kevin Pease  in Pease v. State.2
          While  that  appeal  was  pending,  Roberts  filed   an
application  for  post-conviction relief, alleging  that  he  had
newly  discovered  evidence  that  required  a  new  trial.   The
superior  court denied Robertss application, and we affirmed  the
          superior courts decision.3
          About  six  months  after this court affirmed  Robertss
convictions  on direct appeal, two journalism students  from  the
University  of  Alaska  Fairbanks reported  that  the  jurors  in
Robertss  and  Peases  case  had,  without  court  authorization,
engaged in a group experiment during their deliberations.   Based
on   this   new   information,  both  Pease  and  Roberts   filed
applications for post-conviction relief.
          The  superior  court  allowed  Pease  to  litigate  his
application,  but the court dismissed Robertss application  based
on  the  provision of Alaskas post-conviction relief statute,  AS
12.72.020(a)(6),   that  bars  a  defendant  from   pursuing   an
application  for post-conviction relief if a previous application
for post-conviction relief has been filed.
          Because   Roberts  had  already  litigated  a  previous
application for post-conviction relief (the application based  on
the  claim  of  newly  discovered evidence), the  superior  court
concluded  that  Roberts  had  no  right  to  pursue   a   second
application   even though this second application was  concededly
based on information that was not known at the time Roberts filed
his first application.
          Roberts  now  appeals the superior courts dismissal  of
his second application.
          In  Grinols v. State,4 we explained that Alaska law has
traditionally limited a defendants right to pursue  two  or  more
applications  for post-conviction relief.5  Before the  enactment
of  our  current post-conviction relief statutes (AS 12.72),  the
governing  court  rule   Alaska  Criminal  Rule  35.1(h)   barred
defendants  from pursuing a second or successive application  for
post-conviction  relief  unless the defendant  could  demonstrate
good  cause  for  failing  to  raise  the  claim  in  an  earlier
          As  we  also  explained  in  Grinols,  the  legislature
expressly  repealed  Criminal Rule 35.1(h)  when  it  enacted  AS
12.72.020(a)(6).6  That is, the legislature repealed a court rule
that  barred  successive applications for post-conviction  relief
unless the defendant could demonstrate good cause for failing  to
raise  the  claim  earlier and replaced it with  a  statute  that
seemingly  erects  an absolute bar to any successive  application
for  post-conviction relief  even when there is a good reason why
the   defendant  could  not  raise  the  claim  in   an   earlier
          In Grinols, we noted that [t]here is a real possibility
that  [this]  statute may lead to fundamental  unfairness.7   For
instance,  the  statute would seemingly bar a second  application
for  post-conviction  relief  even in  cases  where  new  genetic
testing  (i.e., testing that was unavailable when  the  defendant
litigated  the first application) would convincingly  demonstrate
the defendants innocence.8  And we squarely held in Grinols that,
despite  AS 12.72.020(a)(6), a defendant who believes  that  they
received  ineffective assistance of counsel during the litigation
of  their  first application for post-conviction relief  must  be
allowed to file a second application on this ground.9
          Robertss case presents a related problem.  Here,  after
Roberts  litigated (and lost) one application for post-conviction
          relief, a potentially fatal flaw in the jurys deliberative
procedures   came  to  light.   The  discovery   of   the   jurys
unauthorized  experiment  would  normally  be  addressed  in   an
application  for post-conviction relief.  In fact,  Robertss  co-
defendant, Pease, was allowed to seek post-conviction  relief  on
this  basis.   But  because  Roberts  had  already  litigated  an
application for post-conviction relief, the superior court  ruled
that Roberts could not seek any remedy  even though there was  an
obvious  reason  why  Roberts  had failed  to  include  the  jury
experiment claim in his earlier application.
          We  note that federal caselaw provides some support for
interpreting AS 12.72.020(a)(6) in a less restrictive manner than
its literal wording might suggest.  Under federal law, a prisoner
who  wishes  to file a second or successive petition  for  habeas
corpus  relief  must allege certain facts, and must  additionally
obtain special permission from the appeals court.10  However, the
federal  courts  have  held  that a petition  is  not  second  or
successive if the petitioner had a legitimate excuse for  failing
to  raise  the  claim  in a prior petition.   See  the  extensive
discussion of this point in Lang v. United States.11
          Conceivably, AS 12.72.020(a)(6) might be interpreted in
a  similar fashion.  Or, alternatively, there may be cases  where
the  need to provide an avenue for relief is so strong that, just
like in Grinols, we would conclude that the due process clause of
the  Alaska  Constitution requires an exception to the  seemingly
absolute bar erected by AS 12.72.020(a)(6).
          But  we  need not decide these issues in Robertss  case
for  we recently held that the jury experiment at issue here (the
jury  experiment that provided the ground for both  Robertss  and
Peases   applications  for  post-conviction  relief)   does   not
undermine  the  result at Robertss and Peases  trial.   In  other
words,  even  if  Roberts  were allowed  to  pursue  this  second
application,   he   would  not  be  entitled  to  post-conviction
          For   this  reason,  we  AFFIRM  the  superior   courts
dismissal of Robertss application for post-conviction relief.

  1  AS  11.41.110(a),  AS  11.41.500(a),  and  AS  11.41.200(a),

  2 54 P.3d 316 (Alaska App. 2002).

3   Roberts   v.  State,  Alaska  App.  Memorandum  Opinion   and
Judgment No. 4723 (June 18, 2003), 2003 WL 21398896.

  4 10 P.3d 600 (Alaska App. 2000).

  5 Id. at 614-16.

  6 Id. at 616.

  7 Id.

  8 Id. at 616-17.

  9 Id. at 618.

  10See  28  U.S.C.  2255 (2000) (providing that  [a]  second  or
successive [application] must be certified as provided in section
2244  by  a  panel  of the appropriate court of appeals)  and  28
U.S.C.  2244(b) (2000) (requiring, inter alia, that the applicant
allege  certain  substantive facts, and that the  application  be
authorized by a three-judge panel).

  11  474  F.3d 348, 351-52 (6th Cir. 2007).  See also Burton  v.
Waddington,  142  F.  Appx 297, 298-99 (9th  Cir.  2005)  (citing
McCleskey v. Zant, 499 U.S. 467, 490, 111 S. Ct. 1454, 1468,  113
L.  Ed. 2d 517 (1991)), vacated on other grounds sub nom.  Burton
v. Stewart, ___ U.S. ___, ___, 127 S. Ct. 793, 797-99, 166 L. Ed.
2d 628 (2007).

  12See  State  v. Pease, ___ P.3d ___, Alaska App.  Opinion  No.
2112 (July 27, 2007), 2007 WL 2143003.

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