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Xavier v. State (6/15/2012) ap-2362

Xavier v. State (6/15/2012) ap-2362


        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts. 

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FRANCIS P. XAVIER,                              ) 

                                                )          Court of Appeals No. A-10589 

                           Appellant,           )          Trial Court No. 4BE-06-292 CI 


             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 


                           Appellee.            ) 

                                                )            No. 2362 - June 15, 2012 

                Appeal from the Superior Court, Fourth Judicial District, 

                Bethel, Marvin Hamilton, Judge. 

                Appearances: Jane B. Martinez, Contract Public Defender, and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

                Timothy     W.   Terrell,  Assistant   Attorney    General,   Office   of 

                Special    Prosecutions    and   Appeals,   Anchorage,     and  John   J. 

                Burns, Attorney General, Juneau, for the Appellee. 

                Before: Coats, Chief Judge, and Mannheimer and Bolger, 


                BOLGER, Judge. 

                In 1985, Francis P. Xavier pleaded no contest to second-degree murder. 

Twenty years later, Xavier filed an application for post-conviction relief, which the 

superior court dismissed as untimely. On appeal, Xavier claims that the legislature did 

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not   intend   for   this   statute   of   limitations   to   apply   to   first-time   applicants   for   post- 

conviction relief, and that denying him the opportunity to file a post-conviction relief 

application violates his right to due process. 

                 The language of the post-conviction relief statute and its legislative history 

give no indication that the legislature intended to exempt first-time applicants from the 

operation of the statute of limitations. And we conclude it was not fundamentally unfair 

to apply this statute to Xavier to prevent him from filing an application twenty years after 

his    conviction.     We    therefore    affirm    the   trial  court's   order    dismissing     Xavier's 



                 In October 1985, Xavier pleaded no contest to second-degree murder and 

was sentenced to eighteen years' imprisonment with ten years suspended. He did not 

appeal his conviction. 

                 At   the   time   Xavier   was   convicted,   there   was   no   time   limit   for   post- 

conviction   relief   actions.   But   in   1995,   the   legislature   enacted   a   two-year   statute   of 

limitations.1 The legislature also provided that anyone convicted before July 1, 1994, 

would have until July 1, 1996, to file an application for post-conviction relief.2 

                 In August 2006, more than twenty years after he was convicted, and more 

than   ten   years   after   the   July   1,   1996   deadline,   Xavier   filed   a   post-conviction   relief 

application, alleging that his original attorney provided ineffective assistance of counsel. 

    1   See former AS 12.72.020(a)(3)(A) (2006). In 2008, the legislature reduced the statute 

of limitations period from two years to eighteen months. See AS 12.72.020(a)(3)(A). 

    2   Ch. 79,  40, SLA 1995. 

                                                      2                                                  2362 

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

The superior court appointed an attorney, who filed a motion requesting a ruling on the 

timeliness of Xavier's application. In response, the superior court dismissed Xavier's 

application for post-conviction relief, concluding that it was barred by the statute of 



                 The      statute    of   limitations      on    post-conviction       relief 

                 applications applies to first-time applicants. 

                 Alaska Statute 12.72.020(a)(3)(A), as originally enacted, provided that a 

post-conviction relief claim could not be brought more than "two years after the entry 

of a judgment of the conviction."3 For individuals who were convicted prior to July 1, 

1994, the   legislature   provided   a   savings   clause, which   appears   to   include   first-time 

applicants: "[A] person whose conviction was entered before July 1, 1994, has until July 


1, 1996, to file a claim ... ." 

                 These statutory provisions were submitted to the 1995 legislature in House 


Bill 201.  In his transmittal letter, the governor stated that the purpose of the proposal 

was   to   "address[]   many   of   the   problems   arising   from   prisoner   litigation,   sentence 

appeals, and frivolous or extremely tardy post-conviction relief motions."6 The governor 

stated that House Bill 201 was "also intended to promote the finality of convictions, 

    3    Ch. 79,  9, SLA 1995. 

    4    Ch. 79,  40, SLA 1995. 

    5   See ch. 79,  9, SLA 1995. 

    6    1995 House Journal 488-89. 

                                                      3                                                 2362

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preserve the sanctity of jury verdicts, minimize the litigation of stale claims, and prevent 

the unjustified dismissal of a criminal case when reprosecution is not possible."7 

                 Xavier relies on sections of the transmittal letter that specifically address 

the problems of successive rounds of post-conviction relief.8   Based on this language, 

Xavier argues that successive applications were the primary focus of this legislation. But 

Xavier ignores the section of this letter in which the governor refers specifically to the 

proposed statute of limitations and states that this provision was intended to "impose[] 

a maximum time limit from the entry of a conviction for filing an application for post- 

conviction relief to challenge a judgment of conviction."9 This language suggests that the 

legislation's drafters intended to impose a statute of limitations on all applications for 

post-conviction relief and not solely on successive applications. 

                 Both the language of the savings clause and the statute's legislative history 

undercut Xavier's argument. We conclude that the statute of limitations does apply to 

first-time applications for post-conviction relief. 

                 In this case, the application of the statute of limitations does 

                 not violate due process of law. 

                 Xavier also argues that the statute of limitations violates his right to due 

process of law. The due process clause protects citizens from arbitrary or fundamentally 

unfair use of government power.10 In determining whether government action violates 

    7    1995 House Journal 489.

    8   See 1995 House Journal 490.

    9   Id.

    10  P.M.   v.   State,   Dep't   of   Health   &   Soc.   Servs. ,   42   P.3d   1127,   1133   (Alaska   2002)

(holding that fundamental fairness is the main requirement of due process); State v. Mouser, 

                                                     4                                                 2362

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

due process, we apply a three-part balancing test. We balance: (1) "the private interest 

that will be affected by the official action;" (2) "the risk of an erroneous deprivation of 

such interest through the procedures used, and the probable value, if any, of additional 

or substitute procedural safeguards;" and (3) "the Government's interest, including the 

function   involved   and   the   fiscal   and   administrative   burdens   that   the   additional   or 

substitute procedural requirements would entail."11 

                The private interest involved in this case is the right of access to the courts 

for collateral review of a criminal conviction. This important right is implicated when a 

legislative    enactment     erects   a  "direct  and   insurmountable       barrier  in  front   of  the 

courthouse doors."12 For example, a statute of repose that forfeited the personal injury 

claims     of  certain   minors    when     they   reached    their  tenth   birthdays    imposed      an 

unconstitutional burden because the minors had no personal right to assert those claims 

until they reached the age of eighteen. 13  But a civil plaintiff's right of access was not 

unconstitutionally burdened by a rule prohibiting her lawyer from loaning her money for 

living expenses, since that rule did not prohibit the plaintiff from filing suit.14 

                In this case, Xavier has not established that he faced any "insurmountable 

barrier" affecting his access to the courts. His claim of ineffective assistance of counsel 

806 P.2d 330, 336 (Alaska App. 1991) ("[T]he essence of due process is basic fairness ... ."). 

    11  Mathews v. Eldridge , 424 U.S. 319, 335 (1976). 

    12  Cleveland v. State, 241 P.3d 504, 507 (Alaska App. 2010) (quoting Sands ex rel. 

Sands v. Green, 156 P.3d 1130, 1134 (Alaska 2007)) (internal quotation marks omitted). 

    13  Sands ex rel. Sands, 156 P.3d at 1135. 

    14  In re K.A.H. , 967 P.2d 91, 95-96 (Alaska 1998). 

                                                    5                                              2362

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

arose when he was convicted and sentenced in 1985. He had a decade to file a timely 

post-conviction relief application before the statute of limitations was enacted. After the 

statute was enacted, he received additional time, until July 1, 1996, to file his application. 

Thus Xavier had an extended opportunity to bring his post-conviction claim. 

                 One could speculate that there remains a risk that Xavier actually suffered 

ineffective assistance of counsel that affected his decision to enter a guilty plea. But 

Xavier   does   not   allege   any   circumstances   that   prevented   him   from   discovering   or 

pursuing his claim. Xavier does not allege that he was prevented from bringing his claim 

by   a   disability   or   by   an   agent   of   the   state. 15  He   does   not   allege   that   he   mistakenly 

attempted to pursue his claim in another forum16 or that he was prevented from filing a 

timely post-conviction application by any other extraordinary circumstances.17 In the 

absence   of   any   such     allegations,   we   conclude   that   any   risk   that   Xavier   has   been 

wrongfully convicted is now quite minimal. 

                 The speculative nature of any prejudice to Xavier must be balanced against 

the legislature's interest in providing a time limit for the litigation of post-conviction 

claims. In this case, the legislature enacted the statute of limitations "to promote the 

finality of convictions, preserve the sanctity of jury verdicts, minimize the litigation of 

stale claims, and prevent the unjustified dismissal of a criminal case when reprosecution 

    15  See AS12.72.020(b)(1)(A)-(B). 

    16  See Alex v. State, 210 P.3d 1225, 1228-29 (Alaska App. 2009) (suggesting that the 

statute of limitations could be equitably tolled in cases where the applicant attempted to 

pursue his claim in another forum). 

    17  See Holland v. Florida , 130 S. Ct. 2549, 2562-63 (2010) (recognizing that the statute 

of limitations for federal habeas corpus claims may be equitably extended to remedy the 

egregious performance of appointed counsel). 

                                                      6                                                2362

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is not possible."18 These are valid legislative goals. We have recognized that statutes of 

limitations "avoid the injustice which may result from prosecution of stale claims" by 

protecting    against  "the  difficulties  caused  by  lost  evidence,  faded  memories    and 

disappearing witnesses."19 

               We    thus  conclude   that  the  government's   interest  in  requiring  timely 

litigation of post-conviction claims and Xavier's extended opportunity   to pursue his 

claim outweigh the minimal risk that he has suffered a wrongful conviction. Xavier has 

not established that the statute of limitations violated his right to due process of law. 


               We AFFIRM the superior court's order dismissing the application for post- 

conviction relief. 

    18  1995 House Journal 489. 

    19 State v. Creekpaum , 732 P.2d 557, 566 (Alaska App. 1987) (quoting Nolan v. Sea 

Airmotive, Inc ., 627 P.2d 1035, 1045 (Alaska 1981)), rev'd on other grounds, 753 P.2d 1139 

(Alaska 1988). 

                                               7                                          2362 

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