Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fisher v. State

Court of Appeals of Alaska

December 20, 2013

Daniel Paul FISHER, Appellant,
v.
STATE of Alaska, Appellee.

Page 687

Daniel Fisher, pro se, Wailuku, Hawaii.

Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge.[*]

OPINION

ALLARD, Judge.

Daniel Paul Fisher filed a petition for writ of habeas corpus, raising issues that could be pursued in an application for post-conviction relief under Alaska Rule of Criminal Procedure 35.1. The superior court reviewed Fisher's habeas petition and sua sponte dismissed it, instructing Fisher to refile his claim as an application for post-conviction relief. Fisher filed a motion for reconsideration, pointing out that Alaska Rule of Civil Procedure 86(m) requires the court to treat a habeas corpus petition as an application for post-conviction relief if the claims can be brought under Criminal Rule 35.1. Relying on Hertz v. State, [1] the superior court denied Fisher's motion for reconsideration.

Fisher appeals, arguing the superior court should have converted his petition to an application for post-conviction relief. Because Civil Rule 86(m) requires the court to treat Fisher's petition for habeas corpus as an application for post-conviction relief, we reverse the dismissal of Fisher's case.

Discussion

Alaska Rule of Civil Procedure 86 governs petitions for writs of habeas corpus. Subsection (m) states:

This rule does not apply to any post-conviction proceeding that could be brought under Criminal Rule 35.1. The court shall treat such a complaint as an application for post-conviction relief under Criminal Rule 35.1 and, if necessary, transfer the application to the court of appropriate jurisdiction for proceedings under that rule.

As the superior court correctly noted, Fisher's petition for writ of habeas corpus involved claims that could be raised in a post-conviction relief action under Criminal Rule 35.1. Pursuant to Civil Rule 86(m), the superior court therefore should have converted Fisher's petition into an application for post-conviction relief and allowed Fisher the opportunity to amend his application to conform with the requirements of Criminal Rule 35.1. Instead, the superior court dismissed Fisher's petition without prejudice and instructed him to file an application for post-conviction relief.

The State argues that there is no direct conflict between the superior court's actions and Civil Rule 86(m) because the superior court's order was not intended to dismiss Fisher's case; it was only intended as a " pleading requirement" requiring Fisher to file a new application that conformed to the requirements of Criminal Rule 35.1(d). The State asserts that under the rules of civil procedure (which govern both habeas petitions and post-conviction applications), the dismissal of a complaint does not necessarily operate to dismiss the entire case. The State therefore argues that the superior court acted within its discretion in dismissing Fisher's non-conforming pleading (the habeas petition) and requiring him to file a new pleading that conformed to the requirements of Criminal Rule 35.1.

Page 688

Although the State may be correct about the superior court's intentions, it is clear that the court system as a whole treated the superior court's order as a dismissal of Fisher's entire case. After the court issued its order, Fisher's case was closed by the clerk's office. To obtain any relief from the superior court, Fisher therefore needed to do more than just file a pleading that conformed to the requirements of Criminal Rule 35.1. He also needed to file all of the paperwork required to initiate a new ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.