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Dayton v. State (1/16/2009) ap-2206

Dayton v. State (1/16/2009) ap-2206

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
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) Court of Appeals No. A-9422
Appellant, ) Trial Court No. 4FA-02-2886 Civ
v. )
) O P I N I O N
Appellee. ) No. 2206 January 16, 2009
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Jane  F.  Kauvar,

          Appearances:  Daniel Lowery, Assistant Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Nancy  R.  Simel, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:    Coats,  Chief  Judge,  Mannheimer,
          Judge,  and Stewart, Senior Court of  Appeals
          [Bolger, Judge, not participating.]

          MANNHEIMER, Judge.

          This case requires us to clarify the limits on a judges
discretion  to  dismiss litigation when the  plaintiff  fails  to
adhere  to  pleading  deadlines.  As we explain  in  more  detail
below,  the  superior court struck Daytons amended  petition  for
post-conviction relief, and then dismissed his underlying lawsuit
          for post-conviction relief, because the amended petition was
filed  almost  six months after the deadline set  by  the  court.
However, the amended petition was filed  and it was filed  before
the  superior court took any action to enforce the deadline.   In
addition, the State never alleged that its ability to respond  to
Daytons  claims for post-conviction relief was defeated  or  even
hampered  by  the  lateness of Daytons amended  petition.   Under
these  circumstances, the tardiness of the  petition  was  not  a
proper  basis  for  the superior court to dismiss  Daytons  post-
conviction relief action.

     Underlying facts
               Andrew  J.  Dayton  was convicted  of  first-
     degree  sexual assault and first-degree  burglary.   We
     affirmed  Daytons convictions in Dayton  v.  State,  89
     P.3d 806 (Alaska App. 2004).
               In  December 2002, while Daytons  appeal  was
     pending, he filed a pro se petition for post-conviction
     relief.   In  response,  the  State  moved  to  dismiss
     Daytons  petition for failure to state  a  prima  facie
     case for relief.  Subsequently, Dayton obtained counsel
     to assist him in the post-conviction relief litigation,
     and  Superior  Court Judge pro tempore Jane  F.  Kauvar
     granted Daytons attorneys request to stay further post-
     conviction relief proceedings until this Court resolved
     Daytons pending appeal.
          In  late  April 2004, this Court  issued  our
decision in Daytons appeal, leading to renewed activity
in   Daytons  post-conviction  relief  litigation.   On
September  1, 2004, Judge Kauvar gave Daytons  attorney
sixty  days   until  November  1,  20042   to  file   a
supplemental  petition  and  additional  materials   in
support of Daytons claim for post-conviction relief.
          On  January  3,  2005 (two  months  past  the
deadline),  Daytons attorney filed  an  affidavit  from
Daytons  trial counsel, Bill Murphree.  Then, on  April
25, 2005 (almost six months past the deadline), Daytons
attorney  filed an amended petition for post-conviction
          Three  weeks  later, on June  13,  2005,  the
State  filed  a  motion asking Judge Kauvar  to  strike
Daytons  amended petition on two grounds:   because  it
was  filed  late, and because it contained  claims  for
relief  that  were not addressed in the trial  counsels
          On  July  27,  2005, Judge Kauvar  issued  an
order  granting  the States motion  to  strike  Daytons
amended  petition for post-conviction relief.  However,
Judge  Kauvar did not specify the basis for her  order.
That  is,  she did not say whether she had  decided  to
strike the amended petition because it was filed  late,
or  because it contained claims that were not addressed
in  the trial attorneys affidavit, or both  or for some
other reason.
          But eight months later, at a hearing held  on
March  2,  2006 to sort out the question of  who  would
represent Dayton in this appeal, Judge Kauvar indicated
that  she  struck the amended petition because  Daytons
attorney  was  so  tardy  in  filing  it.   The   judge
     The  Court:  [T]he Court ... tried  many
times,  [made] many phone calls  starting  in
March of 05 to see if Mr. Rice [i.e., Daytons
post-conviction relief attorney] was going to
respond  to [the] States [motion] to  dismiss
the  [petition].   Each time,  we  were  told
[that]  Mr.  Rice was working on  it.   [The]
Court  felt she had to do something, and  the
post-conviction   relief    [petition]    was

          Judge  Kauvars explanation  of  her
action  apparently  came  as  a  surprise  to
Daytons  attorney.  And when, at a subsequent
representation    hearing,    the    attorney
expressed   his   surprise,   Judge    Kauvar
reiterated that she had dismissed the amended
petition because it was filed tardily:

     Mr.  Rice:  I was confus[ed as  to]  why
the   Court  dismissed  [the  amended   post-
conviction  relief application].  Mr.  Dayton
filed  a [pro se] petition; the D.A. opposed,
[and  then] I filed an amended petition [and]
an  affidavit  from  [Mr.] Murphree  [Daytons
trial attorney].  ...
     .  .  .

     [And]  when this court issued the  order
dismissing  the  petition for post-conviction
relief, I was of the opinion [that] the Court
issued  [that  order] on the  merits,  rather
than for want of prosecution.

     The Court:  Our office called you almost
weekly  to  [get you to] respond.   ...   [I]
tried  to  get something from you to  support
[Daytons  petition].  ...  It is not  correct
[that] you didnt know we were trying to get a
response.  It went on for quite a while.

          In   summary,  even  though   Judge
Kauvars  written  order did not  explain  her
reason for striking Daytons amended petition,
Judge  Kauvar  subsequently declared  (twice)
that she took this action because the amended
petition was filed late.

Why  it  was improper for the superior court to  strike
Daytons amended petition for post-conviction relief

          On   appeal,  the  State  concedes  that  the
superior  court should not have struck Daytons  amended
petition  for  post-conviction  relief.   However,  the
State  bases  its concession of error on  an  erroneous
interpretation of the law.
          The  State  contends that, under this  Courts
decision in Howarth v. State, 13 P.3d 754 (Alaska  App.
2000), it would have been proper for the superior court
to  strike Daytons amended petition if Dayton had  been
represented  by  a lawyer appointed at public  expense.
However, the State takes the position that Howarth does
not  apply  to  Daytons  case  because  Dayton  had   a
privately retained lawyer.
          In   Howarth,  the  defendant  had  a  court-
appointed  post-conviction  relief  attorney  who   was
notified  that the post-conviction relief action  would
be  dismissed  unless  the attorney  filed  an  amended
petition.   Despite  this warning, the  attorney  never
filed  an  amended petition or responded in  any  other
fashion  to  the proposed dismissal.3   In  the  States
brief  to  this  Court in Howarth, the State  took  the
position that, even in such circumstances, the superior
court  had  no  power  to dismiss  the  post-conviction
relief action.  We disagreed:
     We   agree  with  the  State  that   the
superior  court  should  not  have  dismissed
Howarths  petition [given the facts  of  this
case], but we are hesitant to fully adopt the
States   position  that  a  trial  court   is
powerless   to   dismiss   a   petition   for
post-conviction relief until the  petitioners
attorney [performs one of the actions  listed
in Criminal] Rule 35.1(e).  We believe that a
court  might properly dismiss a petition  for
post-conviction relief if both the petitioner
and   the  petitioners  attorney  obstinately
refuse to comply with Rule 35.1(e).

Howarth,  13 P.3d at 756 (with the  citations
to  the rule corrected to reflect the current
pertinent subsections of the rule).
          Based on this passage from Howarth,
the  State  now concludes that  the  superior
court has the authority to dismiss a petition
for   post-conviction  relief  based  on  the
defendants attorneys failure to prosecute the
action,  but  only  if  two  conditions   are
satisfied:  (1) the defendants attorney  must
have   been   appointed  to   represent   the
defendant  at  public expense,  and  (2)  the
attorney must obstinately refuse to  file  an
          amended petition or otherwise respond to the
proposed dismissal of the case.
          Turning  to  the facts  of  Daytons
case, the State asserts that Daytons attorney
obstinately  refused  to  file   an   amended
petition  because the attorney did  not  file
the  amended petition until months after  the
deadline.   Nevertheless, the State  suggests
that  the superior court may have lacked  the
authority  to dismiss Daytons post-conviction
relief  action  because Daytons attorney  was
privately retained.
          The States position is premised  on
a     misreading    of    Howarth    and    a
misunderstanding  of the  phrase  obstinately
refuse.   Daytons case is indeed  distinguish
able  from  the  circumstances  presented  in
Howarth   but not because of who  was  paying
for  Daytons attorney.  Rather, Daytons  case
is different because Daytons attorney (unlike
Howarths attorney) did not obstinately refuse
to  respond  to a proposed dismissal  of  the
post-conviction relief action.
          Daytons  attorney may have  had  no
good  excuse  for  his delay  in  filing  the
amended  petition for post-conviction relief,
but  Daytons attorney ultimately did file the
amended  petition, and he filed it while  the
case  was  still pending (i.e., before  Judge
Kauvar   took  any  action  to  enforce   the
previously  established deadline).   This  is
the critical distinction between Daytons case
and  the  facts  of  Howarth:   Judge  Kauvar
dismissed  Daytons case, not because  Daytons
attorney  failed to file an amended petition,
but  as  a  penalty  for filing  the  amended
petition late.
          Because  dismissal was  used  as  a
penalty  for a late filing, Daytons  case  is
governed   by   the  Alaska  Supreme   Courts
decision  in  Metcalf v. Felec Services,  938
P.2d 1023 (Alaska 1997).
          Metcalf   was  pursuing  a  workers
compensation   claim.   After  receiving   an
adverse    decision    from    the    Workers
Compensation  Board,  Metcalf  appealed   the
Boards   decision  to  the  superior   court.
Metcalf filed his brief on appeal, but he did
not  file  it on time  and, because  of  this
tardiness,   the  superior  court   dismissed
Metcalfs appeal.
          The  supreme  court held  that  the
superior  court  acted  improperly  when   it
dismissed  Metcalfs appeal based on  Metcalfs
failure  to  file his brief within  the  time
limit  specified by the superior court.   The
supreme court reached this conclusion because
(1) Metcalf did, in fact, file the brief, and
(2)  there  was no showing that the tardiness
of  Metcalfs  brief prejudiced his  opponents
ability to defend the appeal:

     Even   though   Metcalf   unquestionably
failed  to  timely file [his] brief  [by  the
deadline specified in the courts] order,  the
superior  court  had  actually  received  the
brief  more than two weeks before it  entered
the  dismissal order.  ...  We also note that
Felec Services [i.e., Metcalfs employer]  and
Cigna   Insurance  Companies  [the  employers
insurer] made no showing [in their motions to
dismiss] that they would be prejudiced by the
filing  delay.  For example, [the]  appellees
did  not  demonstrate that  the  delay  would
hamper  their ability to controvert  Metcalfs
claim on its merits.

Metcalf, 938 P.2d at 1025.
          The supreme court acknowledged that
there might be circumstances where litigation-
ending  sanctions might be justified  because
of   a  litigants  egregious  misconduct,  if
lesser sanctions were affirmatively found  to
be   inadequate.   But  the   supreme   court
concluded that Metcalfs case did not  present
those circumstances:

     Given  that [Metcalfs] brief had already
been   lodged   and   that  [the]   appellees
demonstrated  no prejudice, the harsh  remedy
of dismissal could be justified only if there
had been some controlling principle, such  as
a  need  to punish the wrongdoer, deter  like
conduct,  preserve the integrity of the  fact
finding  process, or protect the  dignity  of
the court.  The superior court identified  no
such justification.  The failure to abide  by
the  courts extension order might  well  have
justified  imposition of some  sanction,  and
had  [the]  appellees demonstrated that  they
incurred  unnecessary costs, some appropriate
remedy  might  have  been  fashioned.   Those
circumstances themselves, however, would  not
justify   complete  dismissal   of   Metcalfs
appeal.  We also note that there is no reason
to  think [that the] delay worked in Metcalfs
favor, such that only dismissal could prevent
Metcalf from using delay to his benefit.  The
record  does  not  suggest  that  the   court
considered, and rejected as ineffective,  any
less   extreme  sanction  or   remedy.    Cf.
Underwriters  at Lloyds [of]  London  v.  The
Narrows,  846 P.2d 118 (Alaska 1993) (setting
aside  [a]  default judgment imposed  as  [a]
sanction   for  [the]  defendants   discovery
violation  where  the trial court  failed  to
consider  the  effectiveness  of  any  lesser

          When   we  apply  the  holding   in
Metcalf  to  the  facts of Daytons  case,  we
conclude  that Judge Kauvar acted  improperly
when  she  dismissed Daytons amended petition
for post-conviction relief.
          It  is  true  that Daytons  amended
petition  was filed late  indeed, quite  late
and  Daytons  attorney offered little  or  no
justification  for his failure  to  meet  the
courts  filing  deadline.  Nevertheless,  the
amended petition was filed.
          When  the  State filed  its  motion
asking  Judge Kauvar to strike the late-filed
pleading, the State did not assert  that  its
ability   to   litigate  the  post-conviction
relief  action had been prejudiced by Daytons
tardiness.  Instead, the State merely  argued
that  it  was outrageous to allow  Dayton  to
amend his application at this late date.
          Despite   the  States  failure   to
allege,  much less prove, that  it  had  been
prejudiced   because  of  Daytons  tardiness,
Judge  Kauvar  imposed the  litigation-ending
sanction  of  striking the amended  petition.
At the time, she did so without explanation.
          We  acknowledge that, in her  later
remarks  at  the representation  hearings  of
March  and April 2006, Judge Kauvar explained
that   her  staff  had  repeatedly  contacted
Daytons  attorney, asking when  he  might  be
expected  to  file the amended petition,  and
that the attorneys repeated response to these
inquiries  was  that he was  working  on  it.
Judge  Kauvar declared that, in the  face  of
these  responses, she felt [that] she had  to
do something  and, for this reason, the post-
conviction relief motion was dismissed.
          The  continued inaction of  Daytons
attorney  might  well  have  justified  Judge
Kauvar  in  do[ing]  something.   But   under
Metcalf,  even  when  a litigant  flouts  the
courts  deadlines, if the litigant ultimately
files  the required pleadings while the  case
is   still   pending,   a   litigation-ending
sanction   is  not  appropriate  unless   the
litigants  opponents have been prejudiced  in
their   ability  to  pursue  or  defend   the
lawsuit, or unless lesser sanctions would  be
ineffective to deter the offending  litigants
misconduct,  preserve the  integrity  of  the
fact-finding process, or protect the  dignity
of the court.
          Judge  Kauvar made no  findings  on
any  of  these  issues.  But with  regard  to
potential  prejudice to the  State,  we  note
that  the State never alleged any.  And  with
regard     to    the    effectiveness     (or
ineffectiveness) of lesser sanctions, we note
that, in Judge Kauvars later explanations  of
her decision to dismiss Daytons petition, she
gave  no  hint  that  she  considered  lesser
sanctions,  much  less  that  she  considered
lesser  sanctions  and  reasonably  concluded
that  they  would  have been  ineffective  to
achieve the courts aims.
          Accordingly,  we conclude  that  it
was  improper  for  Judge  Kauvar  to  strike
Daytons  amended petition for post-conviction

The  States alternative argument that the superior
courts action was harmless error

     The  State  argues that even if it was  error
for   Judge  Kauvar  to  strike  Daytons   amended
petition  for post-conviction relief,  this  error
was harmless because the amended petition fails to
state   a   prima  facie  case  for  relief.    In
particular,  the  State argues  that  the  amended
petition  asserts claims of ineffective assistance
of   counsel  that  were  not  addressed  in   the
affidavit filed earlier by Daytons trial attorney.
     Judge  Kauvar  has  made no  ruling  on  this
issue.  Moreover, even assuming that the State  is
correct,   the   deficiency  in  Daytons   amended
petition  could  potentially be  cured  by  having
Daytons  trial  attorney  respond  to  the  claims
contained  in  the  amended petition.   Given  the
procedural history of this case, we have doubts as
to  whether Dayton has had a proper opportunity to
respond  to  any arguable defects in  his  amended
     For  these reasons, we can not say  that  the
superior courts action was harmless error.


     The   superior  courts  decision  to   strike
Daytons   amended   petition  for  post-conviction
relief is REVERSED.  The superior court shall hold
further  proceedings on the amended petition.   At
that  time,  the State may pursue  its  motion  to
dismiss the amended petition for failure to  state
a prima facie case for relief.

  *  Sitting  by assignment made pursuant to Article IV,  Section
11 of the Alaska Constitution and Administrative Rule 23(a).

2 October 31, 2004 was a Sunday.

3 Howarth, 13 P.3d at 755-56.

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