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Dayton v. State

Court of Appeals of Alaska

January 16, 2009

Andrew J. DAYTON, Appellant,
v.
STATE of Alaska, Appellee.

Daniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Page 1190

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 Judge.[1]

OPINION

MANNHEIMER, Judge.

This case requires us to clarify the limits on a judge's discretion to dismiss litigation when the plaintiff fails to adhere to pleading deadlines. As we explain in more detail below, the superior court struck Dayton's 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 Dayton's claims for post-conviction relief was defeated or even hampered by the lateness of Dayton's amended petition. Under these circumstances, the tardiness of the petition was not a proper basis for the superior court to dismiss Dayton's post-conviction relief action.

Underlying facts

Andrew J. Dayton was convicted of first-degree sexual assault and first-degree burglary. We affirmed Dayton's convictions in Dayton v. State, 89 P.3d 806 (Alaska App.2004).

In December 2002, while Dayton's appeal was pending, he filed a pro se petition for post-conviction relief. In response, the State moved to dismiss Dayton's 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 Dayton's attorney's request to stay further post-conviction relief proceedings until this Court resolved Dayton's pending appeal.

In late April 2004, this Court issued our decision in Dayton's appeal, leading to renewed activity in Dayton's post-conviction relief litigation. On September 1, 2004, Judge Kauvar gave Dayton's attorney sixty days-until November 1, 2004 [2]-to file a supplemental petition and additional materials in support of Dayton's claim for post-conviction relief.

On January 3, 2005 (two months past the deadline), Dayton's attorney filed an affidavit from Dayton's trial counsel, Bill Murphree. Then, on April 25, 2005 (almost six months past the deadline), Dayton's attorney filed an amended petition for post-conviction relief.

Three weeks later, on June 13, 2005, the State filed a motion asking Judge Kauvar to strike Dayton's amended petition on two grounds: because it was filed late, and because it contained claims for relief that were not addressed in the trial counsel's affidavit.

On July 27, 2005, Judge Kauvar issued an order granting the State's motion to strike Dayton's 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 attorney's 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 Dayton's attorney was so tardy in filing it. The judge declared:

The Court: [T]he Court ... tried many times, [made] many phone calls starting in March of '05 to see if Mr. Rice [ i.e., Dayton's post-conviction relief attorney] was going to respond to [the] State's [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,

Page 1191

and the post-conviction relief [petition] was dismissed.

Judge Kauvar's explanation of her action apparently came as a surprise to Dayton's attorney. And when, at a subsequent representation hearing, the attorney expressed his surprise, Judge Kauvar reiterated that she had ...


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