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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
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,
Judges.
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
application.
Background
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.
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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
limitations.
Discussion
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
4
1, 1996, to file a claim ... ."
These statutory provisions were submitted to the 1995 legislature in House
5
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.
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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,
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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
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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).
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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.
Conclusion
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).
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