Timothy G. ALEX, Appellant,
STATE of Alaska, Appellee.
Daniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
In this case, we are asked to construe a clause of the statute of limitations that governs petitions for post-conviction relief. According to AS 12.72.020(a)(3)(A), if a criminal defendant is convicted and then unsuccessfully appeals their conviction, any subsequent petition for post-conviction relief must be filed within " one year after the [appellate] court's decision is final under the Alaska Rules of Appellate Procedure" .
Timothy G. Alex was convicted of weapons offenses. This Court affirmed Alex's convictions in a decision issued on January 13, 2006. See Alex v. State, 127 P.3d 847 (Alaska App.2006). We subsequently denied rehearing on February 16, 2006. Alex then filed a petition for hearing, asking the Alaska Supreme Court to review our decision. See Alex v. State, File No. S-12250. The supreme court denied Alex's petition for hearing on July 24, 2006.
Alex filed a petition for post-conviction relief in the superior court on August 22, 2007. Because approximately thirteen months (i.e., more than one year) had elapsed since the Alaska Supreme Court denied Alex's petition for hearing, the superior court dismissed Alex's petition for post-conviction relief as untimely under AS 12.72.020(a)(3)(A).
In this appeal, Alex argues that our decision of his direct appeal did not become " final" when the supreme court denied his petition for hearing. Alex notes that, under United States Supreme Court Rule 13(1), he had 90 days to seek certiorari relief from the Supreme Court, counting from the day that the Alaska Supreme Court issued its order denying his petition for hearing. Although Alex did not actually file a petition for certiorari in the United States Supreme Court, he argues that the decision of his direct appeal was not " final" until those 90 days expired.
Alex relies exclusively on federal post-conviction relief law to support his argument. The pertinent portion of the federal habeas corpus statute, 28 U.S. C. § 2255(f)(1), declares that a federal defendant's petition for a writ of habeas corpus must be filed within one year of " the date on which the [defendant's] judgment becomes final" . In Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), the Supreme Court held that, for purposes of this statute, when a federal criminal defendant pursues an unsuccessful appeal to the circuit court of appeals, the defendant's judgement becomes final when the Supreme Court " affirms [the] conviction on the merits [following a grant of certiorari,] or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay, 537 U.S. at 527, 123 S.Ct. at 1076.
At first blush, Clay might be read to support Alex's argument that the one-year limitation period for seeking post-conviction relief should not begin running until the time for seeking certiorari review has expired. But Clay involved a federal post-conviction
relief statute that applies only to defendants prosecuted in the federal criminal system. Thus, the holding in Clay was based on, and concerned only, the rules of federal appellate procedure.
Alex was prosecuted under Alaska criminal law, and he is seeking post-conviction relief under Alaska law. Thus, the question is not how 28 U.S. C. § 2255 should be interpreted, but ...