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Selvester v. State (5/8/2015) ap-2452

Selvester v. State (5/8/2015) ap-2452


          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:   

                                    303 K Street, Anchorage, Alaska  99501

                                                Fax:  (907) 264-0878

                                       E-mail:  corrections @



                                                                       Court of Appeals No. A-11746  

                                      Appellant,                      Trial Court No. 3AN-13-8347 CI  

                                                                    (Related case:  3AN-11-13426 CR)  


 STATE OF ALASKA,                                                               O  P  I  N  I  O  N 

                                      Appellee.                             No. 2452 - May 8, 2015  

                   Appeal   from   the   Superior   Court,   Third   Judicial   District,  


                   Anchorage, Erin B. Marston, Judge.  

                   Appearances:      Jason   Earl   Selvester,   in   propria   persona,  

                   Anchorage, for the Appellant.   Donald Soderstrom, Assistant  


                   Attorney  General,  Office  of  Criminal  Appeals,  Anchorage,  

                   and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  


                   Before:    Mannheimer,  Chief  Judge,  and  Allard  and  Kossler,  


                   Judge MANNHEIMER.  

                   While Jason Earl Selvester was awaiting trial for sexual assault, he filed a                   

pro se  petition for writ of habeas corpus, raising a speedy trial claim that he could have         

raised in his criminal case.   Under Alaska law, a writ of habeas corpus can not be used   

as a "substitute for ... any remedy incident to the proceedings in the trial court."  Alaska  

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

Civil Rule 86(n).           More specifically, in Kolody v. State , we observed that "Alaska Civil  

Rule 86(n) codifies the rule that the writ of habeas corpus is an extraordinary remedy,   

and that litigants are not allowed to seek habeas corpus relief if they are entitled to seek  

relief using normal trial court or appellate procedures." 1  

                    But instead of dismissing Selvester's habeas petition and directing Selvester  

to  pursue  his  speedy  trial  claim  in  his  pending  criminal  case,  the  superior  court  

entertained Selvester's petition and denied Selvester's speedy trial claim on its merits -  


both in an initial decision and in a subsequent decision on reconsideration.   

                    Selvester now appeals the superior court's denial of his speedy trial claim  


in the habeas corpus litigation.  

                    Because  Selvester  could  have  raised  his  speedy  trial  claim  by  filing  a  

motion  in  his  pending  criminal  case,  it  was  error  for  the  superior  court  to  entertain  


Selvester's speedy trial claim in a separate habeas corpus case, and it was error for the  


court  to  decide  that  claim  on  its  merits.    The  superior  court  should  have  dismissed  

Selvester's habeas petition, without ever reaching the merits of his speedy trial claim,  


and it should have directed Selvester to pursue his speedy trial claim in his ongoing  

criminal case.   

                    We must therefore vacate the superior court's decision.  But we are also left  

with  a  procedural  problem  created  by  the  superior  court's  mistaken  decision  to  let  

Selvester litigate his speedy trial claim in the habeas corpus case.  

                    It does not appear that Selvester ever independently raised his speedy trial  


claim in his criminal case - the forum where it should have been raised.  (We say this  


because Selvester has filed a separate appeal of his convictions in that related criminal  


case, 3AN-11-13426 CR, and Selvester has not included a speedy trial claim among his  


     1    Kolody v. State , 172 P.3d 842, 843 (Alaska App. 2007).  

                                                              - 2 -                                                         2452

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

"statement of points on appeal" in that other appeal.  See  Selvester v. State, Court of  

Appeals File No. A-12025.)  

                    One potential reason why Selvester did not separately raise his speedy trial  


claim in his related criminal case is that his defense attorney did not wish to raise this  



                    Selvester was represented by counsel in his criminal case, so it would have  


been his attorney's decision (not Selvester's decision) whether to pursue a speedy trial  

claim in that criminal case. 2  Conceivably, Selvester asked his attorney to raise a speedy  


trial claim, but the attorney declined, so Selvester filed his pro se  habeas petition to try  

to litigate an issue his defense attorney in the criminal case refused to pursue.  

                    On the other hand, it is conceivable that Selvester and his attorney never  

discussed the speedy trial claim - that Selvester came up with this issue and then simply  


chose to raise this claim independently in the habeas corpus action.   

                    If this was the situation, then Selvester was potentially deprived of his right  


to counsel - because he represented himself when he litigated the speedy trial claim in  

the habeas corpus action, but he would have had the assistance of counsel if this claim  


had been raised in the criminal case.  And at least potentially, Selvester may have failed  


to raise the speedy trial claim in his criminal case because he thought he already had an  


appealable adverse ruling in the habeas corpus case.  

                    If Selvester was indeed prejudiced by the superior court's actions in this  


habeas corpus case - either in the way we described in the preceding paragraph, or in  


some other way - Selvester must pursue post-conviction relief under Alaska Criminal  


Rule 35.1 if he wishes to seek a remedy.  

     2    See  McLaughlin v. State , 173 P.3d 1014, 1016 (Alaska App. 2007); Simeon v. State,  

90 P.3d 181, 184 (Alaska App. 2004).  

                                                            - 3 -                                                       2452

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


                   We  VACATE  the  superior  court's  decision  regarding  the  merits  of  

Selvester's speedy trial claim.  The superior court should have dismissed the habeas  


corpus litigation as soon as it became clear that Selvester was trying to litigate an issue  


that could be raised in his related criminal case.  

                                                         - 4 -                                                     2452


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