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Kevin W. Pease v. R.V. Veach

August 23, 2011

KEVIN W. PEASE,
PETITIONER,
v.
R.V. VEACH, WARDEN, HUDSON RESPONDENT.



The opinion of the court was delivered by: Scott A. Oravec United States Magistrate Judge

FINAL REPORT AND RECOMMENDATION REGARDING MOTION TO DISMISS [DOCKET 25] CORRECTIONAL FACILITY

Respondent R.V. Veach moves to dismiss Kevin W. Pease's Petition for Writ of Habeas Corpus on the ground that his claims are barred by the one-year statute of limitations pursuant to the Antiterrorist and Effective Death Penalty Act of 1996 ("AEDPA").*fn1 This report and recommendation addresses only the Respondent's Motion to Dismiss.*fn2 Pease filed an Opposition to the Respondent's Motion to Dismiss.*fn3 The Respondent submitted a Reply.*fn4 For the reasons discussed below, I conclude that the Respondent's Motion to Dismiss should be granted.

Procedural History

A. State Court Proceedings

In February 2000, Kevin Pease was convicted of two counts of second-degree murder for killing J.H., as well as second-degree assault and first-degree robbery of Franklin Dayton.*fn5 He was sentenced to serve a composite term of 70 years, with 15 years suspended and 10 years of probation.*fn6 Pease's sentence was silent on the issue of restitution.*fn7
Pease filed a timely appeal with the Alaska Court of Appeals on March 9, 2000.*fn8 While Pease's appeal was pending, the State of Alaska filed a "notice of restitution" in state Superior Court on March 10, 2000.*fn9 The trial court judge orally ordered Pease to make restitution on May 30, 2000.*fn10 However, the restitution ordered was $400 more than the evidence at trial supported.*fn11 Pease amended his appeal to include the claim that the trial judge erred in calculating the amount of restitution.*fn12 The Alaska Court of Appeals affirmed Pease's underlying convictions and sentence, and remanded the restitution issue to the trial court.*fn13

Pease's appeal to the Alaska Supreme Court was denied on November 22, 2002.*fn14 Pease did not seek a writ of certiorari in the United States Supreme Court.

On remand, a separate "restitution judgment" was entered on March 19, 2003.*fn15 This judgment was entered pursuant to Alaska Criminal Rule 32.6(a), (c)(2), (d), an Alaska statute which treats restitution as a separate matter from the underlying criminal sentence.*fn16

B. State Post-Conviction Relief Proceedings

Pease filed a timely application for post-conviction relief challenging his conviction and sentence on March 17, 2003.*fn17 The trial ju dge granted the application but was reversed by the Alaska Court of Appeals on July 27, 2007.*fn18 Pease filed a timely petition for hearing in the Alaska Supreme Court, which was originally granted, then dismissed as "improvidently granted." on August 12, 2009.*fn19

C. Federal Court Proceedings

A petition for Writ of Habeas Corpus was filed in the U.S. District Court for the District of Alaska on August 9, 2010.*fn20 The State of Alaska filed a Motion to Dismiss the Habeas Petition on March 25, 2011.*fn21 A Response in Opposition to the Motion to Dismiss was filed on May 19, 2011.*fn22 A Reply to the Response in Opposition to the Motion to Dismiss was filed on May 31, 2011.*fn23

The Petition for Writ of Habeas Corpus asserted that during Pease's trial, the jury conducted an unauthorized experiment to test the claims of a witness, violating his due process rights under the Fourteenth Amendment.*fn24 The State of Alaska's Motion to Dismiss argues the Petition must be dismissed because it was filed more than one year after Pease's judgment became final.*fn25 The State asserts that Pease's conviction became final when the State Supreme Court affirmed his underlying conviction and sentence, regardless of the trial court's subsequent decision on the issue of restitution.*fn26 The Opposition to the Motion to Dismiss argues that Pease's judgment did not become final until the trial court entered the restitution judgment.*fn27

The Reply in Response to Opposition to Motion to Dismiss contends that because Pease was incarcerated solely due to the 70 year sentence, not the restitution order, once that sentence was affirmed the ...


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