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Brian Hall v. State of Alaska (6/28/2019) ap-2649

Brian Hall v. State of Alaska (6/28/2019) ap-2649


                      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

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                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  


                                                                                                                                     Court of Appeals No. A-12719  

                                                                      Appellant,                                                 Trial Court No. 3AN-14-09493 CI  


                                                                                                                                                           O P I N I O N  


                                                                      Appellee.                                                           No. 2649 - June 28, 2019  

                                   Appeal  f                                                                 

                                                           rom  the  Superior   Court,  Third  Judicial  District,  

                                   Anchorage, Michael L. Wolverton, Judge.  

                                   Appearances:                            Cynthia  L.  Strout,  Law  Office  of  Cynthia  L.  


                                    Strout, Anchorage, for the Appellant. NancyR. Simel, Assistant  


                                   Attorney General, Office of Criminal Appeals, Anchorage, and  


                                   Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  


                                   Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                                   Judge ALLARD.  

                                   In 1995, Brian Hall was convicted of first-degree murder and second-                                                                                                        

degree murder for the shooting deaths of Mickey Dinsmore and Stanley Honeycutt.                                                                                                                                              In  

the years following his conviction, Hall litigated two post-conviction relief applications,                                                                                                        

both of which were denied.                                                  Hall now seeks to litigate a third post-conviction relief                                                                                 

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application based on what he claims is newly discovered evidence of innocence that was  


not available when he litigated his previous post-conviction relief applications.  


                    In the proceedings below, the superior court summarily dismissed Hall's  

application  under  AS  12.72.020(a)(6)  -  the  statutory  provision  that  prohibits  a  


defendant  from  bringing  an  application  for  post-conviction  relief  if  "a  previous  


applicationfor post-conviction reliefhas been filed under [AS 12.72]or under theAlaska  


Rules of Criminal Procedure."   On appeal, Hall argues that this statutory provision  


should not apply to claims based on newly discovered evidence of innocence.  For the  


reasons explained here, we agree with Hall that due process precludes application of the  


statutory bar on successive petitions when a defendant is raising a post-conviction relief  


claim  based  on  newly  discovered  evidence  of  innocence  that  was  not  previously  


available  to  the  defendant.               However,  because  it  is  not  clear  whether  Hall's  claim  


qualifies as newly discovered evidence of innocence under AS 12.72.020(b)(2), we  


conclude that a remand for litigation of this question is required.  


                    Accordingly,  we  vacate  the  superior  court's  dismissal  of  Hall's  post- 


conviction relief application, and we remand this case to the superior court for further  


proceedings consistent with the guidance provided here.  


          Factual background and prior proceedings  


                    Late in the evening of April 16, 1993, seventeen-year-old Brian Hall and  


four of his friends drove together to a bonfire in a parking lot on Campbell Airstrip Road.  


Hall had a loaded pistol with him.  


                     Shortly after they arrived, Hall and his friends got into a shouting match  


with the occupants of another vehicle, Mickey Dinsmore and Stanley Honeycutt.   A  


fifteen-year-old girl, Monica Shelton, briefly acted as an intermediary between the two  


vehicles.  Moments later, Dinsmore and Honeycutt began to slowly drive up along the  


                                                              - 2 -                                                         2649

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

driver's side of Hall's vehicle.                                                                         As they did so, Dinsmore extended a beer bottle, bottom                                                                                                                   

end up, to the driver of Hall's car, stating, "We ain't got no beef with you; do you want                                                                                                                                                                                                 

some of this?"                                      

                                              Hall, who was then standing outside the passenger door of his vehicle,                                                                                                                                                           

testified at trial that he thought Dinsmore had a gun.                                                                                                                              Hall pulled his own gun out of his                                                                           

back pocket and fired three shots over his car towards Dinsmore. One shot hit Dinsmore                                                                                                                                                                                   

on the top of the head and another shot hit Honeycutt in the mouth.                                                                                                                                                                   Both Dinsmore and                                        

Honeycutt died as a result of the gunshot wounds inflicted by Hall.                                                                                                                                                                        

                                              Following waiver of juvenile jurisdiction, Hall was indicted on two counts                                                                                                                                                             

of first-degree murder.                                                            Hall's defense at trial was self-defense.                                                                                                        He testified that he                          

believed that Dinsmore had a gun because Monica Shelton had relayed to Hall and his                                                                                                                                                                                                              

friends, "[Dinsmore and Honeycutt] have a gun, and they'll shoot [you], so just leave."                                                                                                                                                                                                                        

Likewise,   Hall's   defense   investigator   claimed   that   Shelton   had   told   him,   in   an  

unrecorded interview prior to trial, that she thought she had told Hall that Dinsmore and                                                                                                                                                                                                      

Honeycutt had a gun or might have a gun.                                                                                                          1  


                                              However, at trial Shelton maintained that she never told Hall that Dinsmore  


had a gun.  


                                               Shelton's equivocation on whether she said anything to Hall about a gun  


was  discussed  in  the  defense  opening  statement  at  trial,  and  again  during  closing  


arguments. During his direct examination of Shelton, the prosecutor questioned Shelton  


about her statement to the defense investigator.  Shelton testified that she did not recall  


making that statement, but that she may have done so.  Shelton was adamant, however,  


that the truth was that she had not told Hall that Honeycutt and Dinsmore had a gun.  

            1          The defense investigator did not testify at trial, but he made an offer of proof to the                                                                                                                                                                          

trial judge.  

                                                                                                                                              -  3 -                                                                                                                                     2649

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                                                         Hall   was   convicted   of   one   count   of   first-degree   murder   for   shooting  

Dinsmore and one count of second-degree murder for shooting Honeycutt.                                                                                                                                                                                                        

                                                         Seventeen years after Hall was convicted, in November 2012, a defense                                                                                                                                                                                                          

investigator who had been hired by Hall's family contacted Shelton and interviewed her.                                                                                                                                                                                                                                                                                           

In the interview (which was recorded and transcribed), Shelton said that she was willing                                                                                                                                                                                                                                                        

to "put the record straight." Shelton told the defense investigator that she                                                                                                                                                                                                                                       did  remember  

telling Hall that there was a gun because Dinsmore and Honeycutt said they had a gun                                                                                                                                                                                                                                                                     

and pointed to their glove box. She stated, "I did tell [Hall and his friends] that there was                                                                                                                                                                                                                                                                

a gun . . . and that might've been why [Hall] thought 'I'm gonna shoot first.'"                                                                                                                                                                                                                               

                                                         Shelton's statement was not made under oath, and she never affirmed the                                                                                                                                                                                                                                 

 statement in an affidavit.                                       

                                                         A year after the recorded interview was obtained, Hall's attorney filed a                                                                                                                                                                                                                

motion for a new trial based on newly discovered evidence.                                                                                                                                                                                                                  The motion was later                                                          

modified and refiled as an application for post-conviction relief.                                                                                                                                                                                                                This was Hall's third                                                   

application for post-conviction relief.                                                                                                                              Hall had previously filed two applications for                                                                                                                                             

post-conviction relief in 1999 and 2008, raising various ineffective assistance of counsel                                                                                                                                                                                                                                                    

claims.    Both applications had been dismissed and their dismissals affirmed by this                                                                                                                                                                                                                                                                        



                                                         The  State  filed  a  motion  to  dismiss  the  third  post-conviction  relief  


application, arguing, inter alia, that Hall's application was barred under AS 12.72.- 


020(a)(6) because it was successive.  


                                                         The superior court agreed that the application was statutorily barred under  


AS 12.72.020(a)(6), and the court dismissed the application on that basis.  

              2             Hall v. State, 2007 WL 2069546 (Alaska App. July 18, 2007) (unpublished);                                                                                                                                                                                                                                              Hall v.  

State, 2012 WL 5897312 (Alaska App. Nov. 21, 2012) (unpublished).  

                                                                                                                                                                             - 4 -                                                                                                                                                                      2649

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                                                  This appeal followed.                        

                          Why we conclude that the superior court erred in summarily dismissing                                                                                                                                                                 

                         Hall's application as a successive application under AS 12.72.020(a)(6)                                                                                                                                           

                                                  A defendant's right to seek post-conviction relief in the Alaska courts is                                                                                                                                                                                              

governed by AS 12.72.                                                                       Alaska Statute 12.72.020 sets forth various limitations on a                                                                                                                                                                    

defendant's right to seek post-conviction relief.                                                                                                                                 For example, AS 12.72.020(a)(3) and                                                                                              

(a)(4) set forth statutory deadlines that must be met, and AS 12.72.020(a)(6) prohibits                                                                               

a defendant frombringing a claimfor post-conviction relief if "a previous application for                                                                                                                                                                                                                              

post-conviction relief has been filed."                                                                             

                                                  The requirement that the application must be brought within the statutory                                                                                                                                                                     

deadline is subject to certain statutory exceptions, including an exception for claims                                                                                                                                                                                                                  


based on newly discovered evidence of innocence.                                                                                                                                                                                                                                         

                                                                                                                                                                                              To qualify for this newly discovered  


evidenceexception under AS 12.72.020(b)(2), theapplicantmustestablish duediligence  



in presenting the newly discovered evidence claim.                                                                                                                                                  The applicant must also show that  


the newly  discovered  evidence  (A)  was  not  known  within  the  applicable  statutory  


deadline; (B) is not cumulative to the evidence presented at trial; (C) is not impeachment  


evidence; and (D) establishes by clear and convincing evidence that the applicant is  



                                         These requirements are similar to the requirements a defendant must meet to  

             3           See AS 12.72.020(b)(2); see also AS 12.72.020(b)(1) (setting forth two other statutory                                                                                                                                                                 

exceptions to the statutory deadlines).  

            4            AS 12.72.020(b)(2).  

             5           AS 12.72.020(b)(2)(A)-(D).  

                                                                                                                                                        -  5 -                                                                                                                                                2649

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

bring   a   motion   for   a   new   trial   based   on   newly   discovered   evidence   under   Alaska  

Criminal Rule 33 and               Salinas v. State        .6  


                     In contrast to the statutory exceptions that exist for untimely applications,  


there are no statutory exceptions to the prohibition against successive petitions.  Alaska  


Statute 12.72.020(a)(6) declares that "[a] claim may not be brought under AS 12.72.010  


or the Alaska Rules of Criminal Procedure if a previous application for post-conviction  


relief has been filed under this chapter or under the Alaska Rules of Criminal Procedure."  


The statute provides no exceptions to this seemingly absolute bar against successive  



                     In Grinols v. State, however, werecognizedthat"[t]hereisareal possibility  



that [this] statute may lead to fundamental unfairness."                                   We noted, for example, that  

AS 12.72.020(a)(6) would seemingly bar a second or subsequent 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 defendant's innocence.                             We also squarely held in  Grinols that due  


process  requires  an  exception  to  the  statutory  bar  against  successive  petitions  for  


ineffective assistance of counsel claims against the defendant's first post-conviction  

     6    See Alaska R. Crim. P. 33; Salinas v. State, 373 P.2d 512, 514 (Alaska 1962) (holding  


that a defendant seeking a new trial based on newly discovered evidence must show that (1)  


the evidence was newly discovered; (2) the defendant exercised diligence in seeking to  


discover the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the  


evidence is material to the issues involved; and (5) the evidence would probably result in an  

acquittal at a new trial).  

     7     Grinols v. State, 10 P.3d 600, 616 (Alaska App. 2000).  

     8    Id. at 616.  

                                                                -  6 -                                                         2649

----------------------- Page 7-----------------------


relief attorney.                  Thus, defendants who believe 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 for post-conviction relief, notwithstanding the                                                                                         


plain language of AS 12.72.020(a)(6) that seemingly bars such successive petitions.                                                                                                      

The Alaska Supreme Court affirmed this holding in Grinols v. State.11  



                            Following                 the        Grinols   decision,                        the        Alaska             Legislature                 enacted  


AS 12.72.025, setting forth a one-year statutory deadline for ineffective assistance of  



counsel claims based on Grinols. 


                            In  Roberts  v.  State,  we  again  addressed  the  problem  that  AS  12.72.- 


020(a)(6)  potentially  presents  for  post-conviction  relief  claims  that  rely  on  newly  


discovered evidence - i.e., evidence that was not available at the time the prior post- 


conviction reliefapplication was litigated. In Roberts, we noted thatfederal lawprovides  


some support for interpreting AS 12.72.020(a)(6) in a less restrictive manner than its  



                                                                        Under federal law, a prisoner who wishes to file a  

literal wording might suggest. 


"second or successive" petition for habeas corpus relief must allege certain facts, and  

       9      Id. at 618-20.  

       10     Id. at 616-17.  

       11     Grinols v. State, 74 P.3d 889, 895 (Alaska 2003) (holding that "the burden on the state  

[of litigating a second or successive petition] is not enough to overcome a defendant's right  


to effective representation and the risk that that right would be violated if the defendant were  


unable to challenge an attorney's effectiveness").  

       12     See  SLA  2007,  Ch.  24,   25; see  also  House  Finance  Committee,  Testimony of  


Assistant Attorney General Anne Carpeneti on House Bill 90 (Apr. 24, 2007), at 1:57:09 p.m.  


       13     Roberts v. State, 164 P.3d 664, 666 (Alaska App. 2007).  

                                                                                      -  7 -                                                                                2649

----------------------- Page 8-----------------------


must additionally obtain special permission from the appeals court.                                                                        In addition, the          

federal "abuse of the writ" doctrine dictates that a petition is only considered "second or                                                                            

successive" if the petitioner raises claims that "could have been raised in the first petition                                                              

but [were] not so raised, either due to deliberate abandonment or inexcusable neglect."                                                                                 15  


                          Many states likewise provide relief to a defendant who seeks to raise a  


newly  discovered  evidence  claim in  what  would  otherwise  qualify  as  a  second  or  



successive post-conviction relief application.                                                 Most states provide this relief directly  



through their statutes or court rules.                                     At least one state has provided this relief through  



case law. 

       14    See 28 U.S.C.  2255(h) (providing that "[a] second or successive [application] must  

be certified as provided in section 2244 by a panel of the appropriate court of appeals"); 28  


U.S.C.  2244(b) (requiring, inter alia, that the applicant allege certain substantive facts, and  

that the application be authorized by a three-judge panel).  

       15    Lang v. United States , 474 F.3d 348, 351-52 (6th Cir. 2007) (quoting In re Bowen ,  


436 F.3d 699, 704 (6th Cir. 2006)); see also James v. Walsh, 308 F.3d 162, 167 (2d Cir.  


2002) (subsequent petition for writ of habeas corpus is only "second or successive" when it  


raises a claim that was, or could have been, raised in an earlier petition).  

       16    See 24 C.J.S. Criminal Procedure and Rights of Accused  2168 (May 2019 update)  


(noting exceptions for successive petitions that raise ineffective assistance of counsel claims  


and petitions that raise newly discovered evidence claims).  

       17    See, e.g., Ariz. R. Crim. P. 32.1(e) & 32.2(b); Fla. R. Crim. P. 3.851(d)(2) & (e)(2)(c);  


Idaho Code  19-4908; Ill. R. Crim. P. 725  5/122-1(f); La. Code Crim. P. 930.4 & 930.8;  


Miss. R. Crim. P.  99-39-23(6); Ohio R. Crim. P. 2953.23; Or. Rev. Stat. 14  138.550(3);  

R.I. Gen. Laws  10-9.1-8.  

       18    See State v. Reichel, 191 N.W.2d 826, 828 (Neb. 1971) (acknowledging exception to  

statutory prohibition against successive post-conviction motions when the basis relied upon  


for relief was not available at the time the prior post-conviction motion was filed); see also  


State v. Ryan, 601 N.W.2d 473, 484 (Neb. 1999) ("A defendant is entitled to bring a second  

proceeding for postconviction relief only if the grounds relied upon did not exist at the time  


the first motion was filed.").  

                                                                                 -  8 -                                                                          2649

----------------------- Page 9-----------------------

                           In  Roberts, we speculated that AS 12.72.020(b)(6) could be interpreted in                                                                     

a similar fashion to permit post-conviction relief claims that could not have been raised                                                                         


in a prior application for post-conviction relief.                                                                                                                        

                                                                                                  We also considered that there could 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).                                                                             However, we  


ultimately concluded that we did not need to resolve these issues in Roberts because the  


newly discovered evidence claim that Roberts sought to bring had already been found  



to be without merit in his co-defendant's case. 


                           This is not true in the current case. Here, Hall's claim of newly discovered  


evidence has not been litigated in any other forum and the merits of his claim are  


unknown. Wethereforemustdecidetheconstitutional and statutory interpretation issues  


that we left undecided in Roberts.  


                           On appeal, Hall urges us to adopt the federal abuse of the writ doctrine for  


purposesofdeterminingwhetherasubsequentpost-convictionreliefapplication qualifies  


as a "second or successive" petition. As discussed above, under the federal abuse of the  


writ  doctrine,  a  petition  for  writ  of  habeas  corpus  is  not  considered  "second  or  


successive" for purposes of 28 U.S.C.  2255(h) if the petitioner can show that they  



could not have raised the claim in the previous petition. 

       19    Roberts v. State, 164 P.3d 664, 666 (Alaska App. 2007).  

       20    Id.   




       22    See Lang v. United States, 474 F.3d 348, 351-52 (6th Cir. 2007); James v. Walsh , 308  

F.3d 162 (2d Cir. 2002).  

                                                                                  -  9 -                                                                           2649

----------------------- Page 10-----------------------

                              We are not convinced that such a reading is consistent with the legislative                                                                

intent behind AS 12.72.020(b)(6).                                            As we explained in                         Grinols, prior to the adoption of                                  

AS   12.72,   Alaska   Criminal   Rule   35.1(h)   barred   successive   applications   for   post- 

conviction relief "unless the defendant could show good cause for failing to raise their                                                                                              



claim earlier."                       Thus, Alaska law used to have a doctrine similar to the federal abuse  


of  the  writ  doctrine,  and  the  enactment  of  AS  12.72.020(b)(6)  suggests  that  the  


legislature did not intend for that doctrine to continue.  


                              However, this means that our statute is anomalous among the state and  



federal statutes that we have surveyed, which do provide for such relief.                                                                                          The question  


therefore arises whether the absolute prohibition against successive petitions codified in  


AS 12.72.020(b)(6) violates due process. We have already answered that question in the  


affirmative in Grinols.  In Grinols, we held (and the supreme court affirmed) that due  


process necessitated an exception to the statutory bar for claims based on the ineffective  


assistance of prior post-conviction relief counsel - claims which, by definition, could  



not have been raised earlier.                                        We now conclude that a similar due process exception  


exists for claims of newly discovered evidence of innocence.  

       23      See Grinols v. State                     , 10 P.3d 600, 616 (Alaska App. 2000); see also former Alaska R.  

Crim. P. 35.1(h) (pre-July 1995 version) ("Any ground finally adjudicated or not so raised,                                          

or knowingly, voluntarily and intelligently waived in . . . [any] proceeding the applicant has                     

taken to secure relief may not be the basis for a subsequent application, unless the court finds     

a ground for relief asserted which for sufficient reason was not asserted or was inadequately   

raised in the original, supplemental, or amended application."); SLA 1995, ch. 79,  39.  



               See, e.g., 28 U.S.C.  2255; Ariz. R. Crim. P. 32.1(e) & 32.2(b); Fla. R. Crim. P.  

3.851(d)(2) & (e)(2)(c); Idaho Code  19-4908; Ill. R. Crim. P. 725  5/122-1(f); La. Code  


Crim. P. 930.4 & 930.8; Miss. R. Crim. P.  99-39-23(6); Ohio R. Crim. P. 2953.23; Or. Rev.  

Stat. 14  138.550(3); R.I. Gen. Laws  10-9.1-8.  

       25      Grinols, 10 P.3d at 620; Grinols v. State, 74 P.3d 889, 895 (Alaska 2003).  

                                                                                         -  10 -                                                                                    2649

----------------------- Page 11-----------------------

                    Accordingly, we hold that a defendant is entitled to bring a post-conviction  


claim for relief in what would otherwise qualify as a second or successive petition if the  


defendant is able to establish that the claim is based on newly discovered evidence, as  


that term is defined under AS 12.72.020(b)(2). Such a holding is directly in line with the  


requirements of due process under the AlaskaConstitution, our prior decision in Grinols,  


and the law in other state and federal jurisdictions.  


                     The only remaining question left to answer in this case is whether Hall is  


entitled to this exception under the facts presented here.  In its briefing on appeal, the  


State argues that Hall has failed to establish a claim of newly discovered evidence. In  


particular, the State argues that Hall has failed to show adequate diligence in obtaining  


this new evidence; the State maintains that Hall inexcusably waited seventeen years  


before re-interviewing Monica Shelton. The State also argues that the evidence obtained  


through  the  recent  defense  interview  -  an  unsworn  recantation  of  Shelton's  trial  


testimony - is not materially different from the evidence the defense already had at  


Hall's trial.  Lastly, the State argues that Hall has failed to support his claim with the  


proper affidavits and has failed to show that the newly discovered evidence would  


actually result in a different outcome at trial.  


                     We conclude that these are arguments that should be raised in the first  


instance to the superior court.  Because the superior court summarily dismissed Hall's  


application under AS 12.72.020(a)(6), the parties have not had a full and fair opportunity  


to litigate whether Hall's newly discovered evidence claim falls within the due process  


exception we have just articulated.  Accordingly, we remand this case to the superior  


court so that this litigation can occur.  


                                                              -  11 -                                                        2649

----------------------- Page 12-----------------------


                    For thereasons explainedhere,thesuperiorcourt's dismissalofHall's post- 


conviction relief application is VACATED, and this case is REMANDED to the superior  


court for further proceedings consistent with the guidance provided in this opinion.  We  


do not retain jurisdiction.  


                                                           -  12 -                                                      2649

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